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TMI Blog2009 (6) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... notes. The refund claims have been rejected on the ground that appellants have relied upon circular issued by CBEC dated 13-6-2000 and the same is not applicable. 2. Shri D.K. Trivedi, ld. Advocate on behalf of the appellants submits that lower authorities rejected the claim only because the assessee had not resorted to assessment on provisional basis. He also submits that another ground taken is that assessee had not disclosed the intention to pass on the discount to the department and make a request for provisional assessment. He also submits that even though appellants had cited the Circular as a basis of their refund claim, the examination of refund claim and its eligibility should be on the basis of law. According to his submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that it must be established that he discount for a given transaction has actually been passed on to the buyer of the goods. The differential discounts extended as per commercial considerations on different transactions to unrelated buyers if extended cannot be accepted for working assessable value. Where the assessee claims that the discount of any description for a transaction is not readily known but would be known only subsequently - as for example year end discount - the assessment for such transactions may be made on a provisional basis. However, the assessee has to disclose the intention of allowing such discount to the department and make a request for provisional assessment." 4. We also note that in the case of Telephone C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which shows that the turnover discount and its quantum was known to both dealers and the appellants. Further, perusal of Para 9 of the Circular dated 13-6-2000 also shows that the last two lines which required provisional assessment to be resorted to and department to be informed were basically procedural. It is not the case of the department that because such non-intimation or provisional assessment was not requested for, the department has not been able to arrive at the correct assessable value. Department has also not examined whether the discount has been passed on or not. Further, the requirement of provisional assessment and intimation are not prescribed by statute. We also note that it is a case where provisional assessment was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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