9911796707
TMI Blog1998 (7) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... f Act, 1985. These goods are cleared to different consumers directly or through the dealers. Discount at different rates are given depending upon the quantity and the type of the products ordered by the customers. Dispute arose regarding the higher discount granted to two dealers viz., M/s. Gujarat Essence Mart Pvt. Ltd. (hereinafter referred to as GEM) and M/s. Forkey Enterprises (hereinafter referred to as FE). It is claimed by the appellants that these two customers lift bulk of their products ranging from 50 to 60% of their sales. While the discount given to other dealers range from 8.5% to 13% in the case of saccharin and 12.5% to 20% on products other than saccharin, these two dealers viz., GEM and FE are allowed a discount of 161/2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner vide his order dated 30-12-1991 which was confirmed by the Commissioner (Appeals) vide his present impugned Order-in-Appeal No. KVV/61/92.B-I, dated 7-10-1992. While confirming the Assistant Commissioner's order the Appellate Commissioner recorded that it is not clear from the impugned order or from the appellants submissions as to the nature of the goods bought by two buyers vis-a-vis other buyers in whole-sale trade. If the above said buyers also buy such goods as bought by other buyers then the trade discount given to other buyer should also be allowed in the case of such goods made to the two buyers. 2. Shri Bulchandanai, the learned Counsel argued the case for the appellants and Shri S.V. Singh, the ld. DR, presented the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contentions, it is found that the Tribunal presently has to decide the validity of the order of the Commissioner (Appeals) impugned before it. The period considered by the subsequent order of the Commissioner (Appeals) relied upon is not the same and that order has to be considered in the context of the relevant facts of that period. The most important of it being that was the period during which the appellants were working under permission granted to them on 29-6-1990 under Rule 173C(11) of Central Excise Rules, for invoice value assessment. Further the subsequent appellate order prima facie has examined the angle whether the two buyers were related persons. However, in the present impugned order the thrust of the reasoning is that the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Gujarat Essence Mart are also describing themselves as Selling Agents of the appellants and if that be so, there are judicial decisions that discount given to indentors or agents is not permissible under Section 4(4)(d)(ii), see in this connection Seshasayee Papers and Boards v. CCE - 1990 (47) E.L.T. 202. However, as is obvious from the observations of Commissioner (Appeals), none of these materials were produced before him though existent at that time and it is not apparent whether this aspect of Selling Agency was noted in the subsequent order dated 14-12-1995 passed by Commissioner (Appeals). In such a situation the Tribunal for the first time cannot go into it being factual and unverified. 3. As for the case law cited before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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