TMI Blog2015 (9) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... n the invoices issued earlier would stand reduced to that extent and in such a situation, the burden of proof would shift to the Department and it would be for the Department to establish that the credit notes issued are bogus. In the present case, there is no such evidence produced by the Department. In view of this, following the judgement of the Hon'ble Rajasthan High Court in the case of A.K. Spintex Ltd. (2008 (11) TMI 89 - RAJASTHAN HIGH COURT), and the judgement of the Karnataka High Court in the case of Sudhir Papers (2011 (3) TMI 1443 - KARNATAKA HIGH COURT), we hold that there is no unjust enrichment and that the incidence of higher duty paid by the assessee and whose refund is being claimed has been borne by them and has not been passed on by them to their customers. - Decided against Revenue. - Excise Appeals Nos. E/55091 & 55213 of 2014-EX(DB) - Final Order Nos. 51950-51951/2015 - Dated:- 4-6-2015 - Rakesh Kumar, Member (T) And Sulekha Beevi, Member (J), JJ. For the Appellant : Shri R K Gupta, DR For the Respondent : Shri Tarun Gulati, DR ORDER Per Rakesh Kumar: The facts leading to filing of these appeals, one by M/s.Bridgestone India Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the assessee has filed appeal against the part of the Commissioner (Appeals) s order disallowing the deduction of the quantity discount/turnover discount. 2. Heard both the sides. 3. Shri Tarun Gulati, Advocate, ld. Counsel for the appellant, pleaded that as regards quantity discount/turnover discount, as is clear from the Clause in the assessee s agreement with their dealers, the same is linked to the dealers buying certain minimum quantity during the month, that there is no linkage between the quantity discount available to a dealer and that dealer having to provide certain facilities and infrastructure at his showroom, that there is nothing in the assessee s agreement with their dealers/C F Agents from which it can be inferred that the quantity discount was subject to the condition of making certain minimum investment on providing certain infrastructure and facilities at the showroom, that the quantity discount, even if it is passed on subsequent to the clearance is deductible and cannot be included in the assessable value, that in this regard, he relies upon the judgement of the Tribunal in the case of Commissioner of Central Excise Vs. Goetze (India) Ltd. reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dealers and those credit notes have not been challenged by the Department, the assesee cannot be said to have passed on to their customers, the burden of excess duty paid by them and whose refunds have been claimed and in this regard he relies on the judgement of Rajasthan High Court in the case of Union of India Vs. A.K. Spintex Ltd. reported in 2009 (234) ELT 41 (Raj), wherein the High Court held that the presumption of passing on the incidence of duty mentioned in the invoice issued under Section 12 A is a rebuttable presumption and once the assesee produces evidence of having borne the incidence of excise duty whose refund claim has been claimed by them, by producing evidence of having issued credit notes to the buyers, the burden would shift to the department to prove that the credit notes are not genuine, that the same view has been taken by the Karnataka High Court in the case of Sudhir Papers Ltd. Vs. CCE, Bangalore reported in 2012 (276) ELT 304 (Kar.), that the ratio of the judgements of the Hon ble Rajasthan High Court and Karnataka High Court is squarely applicable to the facts of this case and in view of this, the order of the Commissioner (Appeals) that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not material that the discount should have been passed on at the time of clearance. In fact, in terms of para-9 of the Board s Circular No.354/81/2000-TRU dated 30.06.2000, discount of any type or description given on any normal price payable for any transaction will not form part of the transaction value for the goods e.g. quantity discount for goods purchased or cash discount for the prompt payment etc. will therefore not form part of the transaction value and what is important is that it must be established that the 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 objected to and different actual prices paid or payable for various transactions are to be accepted for working assessable value. 7.1 Since in the present case, the discount policy of the assessee is known prior to the clearance as the rate of discount is mentioned in the assessee s agreements with their dealers and also from the circulars, it is clear that the deduction of quantity discount cannot be disallowed. However, according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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