TMI Blog2006 (4) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the proceedings initiated against them under Show Cause Notice No. 39/2004-05, dated 6-12-2004 issued by the Additional Director General, Directorate of Central Excise Intelligence, Bangalore. Similarly, M/s. Atlantic Spinning and Weaving Mills Ltd, XELDEM, QUEPEM, Goa - 403 705 (hereinafter referred to as the Applicant No. 2 ) filed another application dated 5th August 2005 for settlement of the proceedings initiated against them under Show Cause Notice No. 38/2004-05, dated 6-12-2004 issued by the Additional Director General, Directorate of Central Excise Intelligence, Bangalore and pending for adjudication before the Commissioner of Central Excise, Goa. Along with the applicants, Shri Arvind S. Yadav, Director, and Shri Rajiv Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penal provisions and sought to demand interest on the alleged short payment. Penal provisions are also invoked against the various officers of the company mentioned at para 1 above. 3. In their application, they admitted an amount of Rs. 47,50,387/- in respect of their Mysore Unit and Rs. 55,01,263/- in respect of their Goa Unit. They pleaded that while computing the duty, the investigation has not taken into account certain abatements, which they were legally entitled to. According to them, they were entitled to abatements on account of cash discounts, quantity discounts and outward transportation expenditure incurred by their consignment agent. Further, they also claimed that the price they realised, should be taken as cum-duty price a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter dated 10-11-2005, stated that the Board s Circular MF (DR) F. No. 354/81/2000-TRU, dated 30-6-2000 specified that if the discounts were not readily known at the time of clearance, the assessee should resort to provisional assessment. Since this was not done in the present case the applicants were not eligible for the same. The Revenue at the same time admitted that some of the seized documents did indicate the amount of quantity discounts allowed and that the information was available in the balance sheet of the consignment agent, namely, M/s. Shree Processors Limited. However, as the applicants had failed to comply with the Board s circular, the claim for abatement towards quantity discount should not be extended to them, the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputation took place. Therefore, he requested that they should be given total immunity from interest and also immunities from fine, penalty, prosecution etc. 10. The representative of the Revenue reiterated the contentions that the applicants were not entitled to the abatement for quantity discount and therefore, the differential duty should be Rs. 68,70,953/- for Mysore Unit and Rs. 74,75,413/- in respect of their Goa Unit. He reiterated that there was suppression of the actual transaction value, as they had not informed the Revenue of the sale price of their consignment agent. Further, the applicants did not deserve waiver of interest as they were claiming the benefit of treating their price as cum-duty price. It was not a case of techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Revenue of their intention to extend the quantity discount. These are clearly procedural lapses on the part of the applicants. Since there is no doubt that quantity discounts were granted to the customers and legally quantity discounts can be abated from the value, the Bench is of the view that this substantial benefit should not be denied to them on the ground of procedural lapses indicated above. Accordingly, the Bench extends the benefit of quantity discount to the applicants. The Revenue has worked out the net duty payable after taking the quantity discount into account and submitted a statement along with their letter dated 20-3-2006. According to this, the total liability in respect of Goa Unit comes to Rs. 55,83,182/- and in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a simple interest of 10% per annum on the differential duty for the period in dispute. The Bench has taken note of a letter from the learned Advocate dated 10th April, 2006 requesting for waiver of interest and expressing their willingness to forego the cum-duty benefit if it is standing in the way of immunity from interest. As explained above, the Bench is of the firm view that they should pay the interest for the various reasons mentioned and hence, the present plea cannot be accepted. The Bench is inclined to give them immunities from fine, penalty and prosecution. 14. Accordingly, the applications are settled finally under sub Section (7) of Section 32F of the Central Excise Act, 1944 on the following terms and conditions :- (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
