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TMI Blog2006 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ur. 2. The assessee had claimed several deductions from the list price for the purpose of arriving at the assessable value. The assessee succeeded before the original authority and the first appellate authority in regard to all such deductions except for "additional discounts" The reason of the Assistant Commissioner for denying this discount was that "Additional Discount were not uniformly allowed to all the buyers as the credit notes were issued after effecting sale and through negotiation with the buyers and the purpose of allowing this discount was also not disclosed to the department". When the dispute came before Commissioner (Appeals), he held that additional discount was given purely on a discretionary basis and the criterion is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of TISCO - 2004 (174) E.L.T. 307. Learned SDR also would submit that widely varying discounts for purchases in the same area would not be permissible for assessment as held by Hon'ble Supreme Court in the case of Kirloskar - 2005(181) E.L.T. 299. 6. In his reply to the points made by the learned SDR, it is being pointed out by the learned counsel for the appellant that the aforesaid judgment did not apply to the facts of the present case. Firstly, because the appellant was not selling to different classes of buyers, sales were only to wholesale dealers. Secondly, because there is no variation in price in the same area as brought out by the statements filed in regard to various (Ernakulam and Ahmedabad) depots. 7. Value for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g returnable for any reason. 8. In view of what is stated above, we hold that the impugned orders were in error in disallowing the additional discount as permissible discount. All the orders are, therefore, set aside. 9. Commissioner (Appeals)'s order also raised the issue whether the refund arising from the finding of provisional assessment would be hit by unjust enrichment. As already noted, a part of the discount is passed through credit notes and is adjusted in the outstanding bills of the wholesale dealers. Therefore, discount and tax applicable on it does get adjusted on monthly basis. Therefore this is not a case where tax has been passed on to the buyers. Therefore, the question of unjust enrichment cannot arise in the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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