TMI Blog2001 (9) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... white televisions manufactured by them to various wholesale buyers and industrial consumers; that they have a system of offering discount to customers depending upon their off take during a particular month; that when the goods are initially sold at a mutually agreed tentative price and at the end of the month when the particular buyer meets the requirement stipulated for the eligibility of the discount, the same is passed on in the form of Credit Notes; that the Dy. Commissioner disallowed the deduction of the said discount from the assessable value on the ground that the overall policy of admissibility of discount was not known to the buyers at the time of removal of the goods; that their appeal was also rejected by the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly excise duty is required to be levied only on the value which has been actually collected from the buyers. Reliance was placed on the decision in the case of CCE, Meerut v. Pashupati Acrylon Ltd., 2000 (120) E.L.T. 768 (Tribunal), wherein it was held that assessment to excise duty must be on the basis of normal price at which such goods are sold to each buyer. 3. Learned Advocate, further, submitted that as the show cause notice was issued on 4-6-1998 demanding duty for the period from July, 1997 to March, 1998, demand for the period up to November, 1997 is barred by time- limit as the extended period for demanding duty is not invokable; that no material information was suppressed from the Department; that they had filed a price declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Padmini Products v. CCE, 1989 (43) E.L.T. 195 (S.C.). Finally, he submitted that as there was no suppression of facts, penalty under Section 11AC is also not imposable; that penalty under Rule 173Q of the Central Excise Rules is also not sustainable as they had complied with all requirements of the law and filed all the necessary documents with the department and there was no procedural or substantive violation of the provisions of the Act and Rules; that in terms of Section 4(4)(d)(ii) of the Act and in terms of the decision of the Larger Bench of the Tribunal in the case of Shree Chakra Tyres v. CCE [1999 (108) E.L.T. 361 (Tribunal) = 1999 (32) RLT 1] the price is to be treated as cum-duty price and the assessable value has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n CCE v. H.M.M. Ltd., 1995 (76) E.L.T. 497 (S.C.) wherein it was held that the question of penalty would arise, if the demand is not sustained on the ground of limitation. 5. We have considered the submissions of both the sides. The Supreme Court in Bombay Tyres International (supra) clarified that the discount allowed in the trade (by whatever means such discount is described) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreement or under terms of sale or by established practice, the allowance and the nature of the discount being known at or prior to the removal of the goods. The Appellants have not brought on record any agreement or terms of sale under which the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds discount. Following the ratio of the decision of the Apex Court in the case of Pushpam Pharmaceutical and Padmini Products (supra) we find that there is no suppression of facts with an intent to evade payment of duty. Accordingly the duty is payable by the Appellants only for a period of 6 months from the date of show cause notice. The Adjudicating Authority while computing the quantum or the demand will also give an abatement of excise duty in terms of Larger Bench s decision in the case of Shree Chakra Tyres. As there was no suppression of facts on the part of the Appellants, no penalty under Section 11AC of the Central Excise Act is imposable. Further, we are of the view that no penalty under Rule 173Q is also required to be imposed i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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