TMI Blog2011 (5) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... ood at the time of removal of goods is permissible even if the same are quantified later and in para 58 and 60 of the judgement with regard to 'turnover discount' has held that though the turnover discount is determined on half yearly basis depending upon the volume of purchases made by the dealers, its deductions is permissible as it is known and understood at the time of removal of the goods, though it is quantified later, matter is remanded to the original adjudicating authority for denovo adjudication in accordance with the ratio of judgement of the Hon'ble Supreme Court in the case Madras Rubber Factory, appeal stand disposed of - E/6159/04 - Mum - A/425/2011-WZB/C-II/(EB) - Dated:- 11-5-2011 - Shri Rakesh Kumar, Shri Ashok Jindal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim for the excise duty amounting to Rs.20,92,683/- paid by them. The refund claim was rejected by the jurisdictional Asst. Commissioner vide order-in-original dated 29.7.03 on the ground that the quantity discount was not known at the time of clearance of the goods as the same had not been mentioned in the invoices under which the goods had been cleared. While rejecting the refund claim on this ground, the Asst. Commissioner also observed that the appellant have not submitted excise invoice-wise details co-relating the depot-wise/location-wise invoices issued by them to arrive at the duty involved in goods supplied free as quantity discount, which has been claimed as refund. On appeal to Commissioner (Appeals), the Commissioner (Appeals) v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g upon the Hon'ble Supreme Court's judgement in the case of Union of India vs. Madras Rubber Factory - 1995 (77) ELT 433 (S.C.) the Tribunal has held that deduction towards turnover discount for determining assessable value is permissible even if the same is quantified on half yearly basis, that the Tribunal in the case of Swastik Fragrances vs. CCE - 2000 (121) ELT 375 has held that there is no legal requirement that the assessee should disclose to the department the existence of a scheme before its launch or during the currency of the scheme and all that is required is that the discounts claimed should be known to and understood by the dealers/customers at the time of removal of the goods, that the Hon'ble Bombay High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted before the Asst. Commissioner, but the adjudicating authority never called for information on the co-relation aspect which would have been submitted if asked for and that in view of the above, the impugned order is not correct. 5. Shri S.S. Katiyar, learned SDR defended the impugned order by reiterating the findings of the Commissioner (Appeals) in the impugned order and pleaded that during post July 2000 period, the discount has to be shown on the body of the Central Excise invoices which has not done in the case, that co-relation of the goods cleared on payment of duty from the factory gate and the goods sold from the depot free of charge as quantity discount has not been made, that the appellant has also not explained as to how t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscounts known and understood at the time of removal of goods is permissible even if the same are quantified later and in para 58 and 60 of the judgement with regard to 'turnover discount' has held that though the turnover discount is determined on half yearly basis depending upon the volume of purchases made by the dealers, its deductions is permissible as it is known and understood at the time of removal of the goods, though it is quantified later. Though the new Section 4 with effect from 1.7.2000 in which the assessable value is the transaction value of the goods, does not has a specific provision for deduction of trade discounts, the concept of transaction value, by its very nature would include the deduction of trade discount and, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I v. Madras Rubber Factory (supra). The original adjudicating authority must determine as to whether during the period of dispute there was quantity discount policy announced by the appellant and whether the discounts given to their customers in respect of sale are in accordance with the discount policy. He should also consider the aspect of unjust enrichment which would be applicable if in respect of free supply quantity, duty had been recovered from the customers. The appellant's plea that the free quantity as mentioned in the depot invoices had been cleared on payment of duty under the Central Excise invoices issued at the time of clearance from the factory may also be considered. The appeal stand disposed of as above. (Dictated in op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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