9911796707
TMI Blog2009 (4) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants filed price lists claiming deduction of secondary packing, selling expenses and freight from their sale price, for determination of assessable value. As these deductions were not accepted by the Department, the appellants have started paying duty provisionally from 25-4-1980 on the assessable values claimed by them in terms of Rule 9B of the Central Excise Rules, 1944. Having failed to get the desired deductions on account of post-manufacturing expenses from the Department, the appellants have filed a W.P. No. 9270/81 in the Hon'ble Andhra Pradesh High Court, requesting the Hon'ble Court to issue an order directing the Department to approve the price lists as filed by them. The Hon'ble High Court passed an interim order vide W.P.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) discounts; (iii) freight; and (iv) standard deductions on account of BED and SED. As per the appellants, the discounts given are in the nature of certain quantities (normally 5 packets for a tin of biscuits sold) which are given free of cost when the dealer purchases a known quantity of biscuits. It was also explained that this sort of incentive was not extended simultaneously to all the traders in the various zones at a particular point of time; the incentive is given only to those zones where the competitors made similar offers. As the deductions claimed were not supported by documents evidencing their admissibility, the appellants were issued a show cause notice dated 18-1-1984 requesting them to file documentary evidence substant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequent to the appeal filed by the appellant against the subject Order-in-Appeal, the Hon'ble CESTAT South Zonal Bench vide Final Order No. 1583/2004, dated 6-10-2004 has remanded the case to the original authority for considering the evidence furnished by the appellants in the matter of quantity discount. During the de novo proceedings vide Order-in-Original No. 01/2006(C.Ex.), dated 31-3-2006 Hyderabad G-Division has held that- (i) he is unable to agree with the plea of the appellants that the discounts claimed were made known to the Department and the buyer at the time of their clearance; (ii) the very basis of the show cause notice has been that the party has not submitted any evidence; (iii) the appellants have only tried to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments claimed. The first adjudicating authority had actually accepted those quantified amounts sought for abatement under secondary packing, freight and quantity discount. However, he rejected the claim on principle that the discounts claimed is not a trade discount but it is a sort of incentive and therefore that the abatement sought for was not available. The present Deputy Commissioner who readjudicated the case denied the benefits for abatements on a different ground that the customers did not know the existence of the discounts. This observation is factually incorrect, and made without appreciating the finding of the 1st adjudicating authority, the Asst. Collector. (b) The 2nd appellate authority committed error by observing, inter al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not provide any tangible evidence such as gate passes, sales registers, sales ledgers, invoices etc., It is her submission that these documents are the basic documents to actually show that the so called discount being claimed were known at the time of sale and that they have been actually passed on. 5. We have heard both sides and perused the records. The issue in this case is regarding the eligibility of quantity discount as a deduction from price to the appellants. The lower authorities have denied the quantity discount given by the appellant and added the same to the assessable value and confirmed the differential duty. This is the second round of litigation before the Tribunal. In the first round of litigation this Bench vide Final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the adjudicating authority has taken upon himself to travel beyond the order of the Tribunal inasmuch as that both the lower authorities have held that the discounts claimed were made known to the department and buyer before the clearance, is absent. In the absence of such an information to the buyer and the dealer at the time of clearance there should be tangible evidence that they have actually passed it on to the customer. We find that this observation of both the authorities seems to be totally misplaced and misconceived. It is the fact that the conclusion of Tribunal that the discounts were passed on, has not been challenged by the Revenue, and hence attained finality. It is seen that there is factual error in the orders of the lower a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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