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2000 (8) TMI 85 - SC - Central ExciseAdmissibility of discount damages Held that:- When the original Authority took up the matter for consideration after remand, the respondent filed certain affidavits of its buyers who in their own words have stated that some trade practice was existing whereby the respondent company was reimbursing the loss suffered by the buyers due to the damages caused to the goods. Learned Attorney General has argued that these affidavits cannot be relied upon. He also urged that the appellant has produced a copy of the agreement between the respondent and its buyers which, according to him, belied the existence of the trade practice as claimed by the respondent. Even though this document was produced only at the first appellate stage, we find it has direct bearing on the question in issue in view of the contents of clause 14 of the said agreement. Based on this clause, it is contended for the appellant that no trade practice in regard to 'damage deduction' is in existence. On behalf of the respondent, it is contended that they are not relying on the agreement to establish the trade practice; still, to rebut the argument of the appellant based on clause 14 of the agreement the respondent places reliance on clause 15 of the said agreement which, according to the respondent, creates an obligation on the respondent to compensate the buyers for the loss suffered by them due to damage to the goods. We do not want to express any opinion in regard to these arguments addressed by the parties. The authorities below have not gone into the impact of the various clauses of the agreement on the claim of the respondent as to the existence of trade practice in the wholesale market. We feel this raises primarily a question of fact and is a matter which goes to the root of the claim, therefore, it should be decided in the first instance by the original Authority. Therefore, we consider it appropriate to remand the matter back to the original Authority directing it to decide the matter afresh after giving the parties concerned an opportunity of producing such evidence as they desire to produce and after hearing the parties. We make it clear that we have not expressed any opinion with reference to the various arguments addressed before us and referred to in this order of ours except to the extent of the finding delivered by us in regard to the finality of the decision rendered by the Tribunal in the earlier round of proceedings and in regard to the correctness of the reliance placed by the Tribunal on the two orders of its own while allowing the appeal of the respondent, which according to us, is unsustainable.
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