Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (4) TMI 1031 - CESTAT MUMBAI

2015 (4) TMI 1031 - CESTAT MUMBAI - TMI - Duty demand - Valuation - appellant were issuing debit notes to their distributors/consignment agents for the said 2% margin of replacement - Revenue contented that since 2% margin was not claimed by the appellant in price declaration and since the debit note was raised towards the said margin the deduction is not admissible - Held that:- Appellant in the marketing policy explicitly declared to their wholesale buyer in all over India regarding the margin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

oi rates are different. Therefore the rate of margin indeed the same and uniform, the variation is only on account of Sales Tax/Octroi. As regard the debit notes, we find that this practice is not followed in each and every case as against the total sales. Only few debit notes were issued for an amount of ₹ 2,41,337/- therefore in our view merely because the debit note of ₹ 1,46,706/- was issued, entire sale cannot be weighed in the same manner.

2% margin which is margin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n of Sales Tax, Octroi, 7.5% margin, 2% margin and excise duty from the retail sale price, therefore the wholesale price clearly known. Hence, excise duty is chargeable on the wholesale price and not on retail price. - Partial amount is recoverable - Decided partly in favour of assessee. - Appeal No. E/354/05 - Dated:- 27-4-2015 - Mr. P.K. Jain, Member (Technical) And Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri Bharat Raichandani, Advocate with Shri Mihir Mehta, Advocate For the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e declaration to the department, however in the price declaration they have not declared the deduction of 9.5% margin given to their consignment agent/distributors out of which, however 2% margin was for replacement of goods damaged in transit before arriving at Depot. The appellant were issuing debit notes to their distributors/consignment agents for the said 2% margin of replacement. The said deduction was a mutual agreement entered by the appellant with their consignment agent for protection .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d of excise duty amounting to ₹ 2,41,337/- along with interest and equal amount of penalty of ₹ 2,41,337/- were confirmed. Being aggrieved by the said order the appellant filed appeal before the Commissioner (Appeals) who rejected the same by upholding the Order-in-Original. Therefore the appellant is before us. 3. Shri Bharat Raichandani, learned Counsel for the appellant alongwith Shri Mihir Mehta, Advocate submits that as per their sales policy this margin was provided uniform to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he wholesale price wherein the amount of Sales Tax, margin, excise duty were shown, after deduction of the said from the retail price, the wholesale price was arrived and the same price is charged to their distributor/consignment agents. Therefore the wholesale price is assessable value which is correct value on which excise duty is charged. It is his submission that they have issued a debit note in very few cases but at the same time they have issued credit notes also for huge amount and the am .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as per the actual calculation of the different rate of Octroi the assessable value vary from one state to another states. However the margin given to the wholesale buyer 7.5%+2% = 9.5% is fixed therefore it cannot be said that the sale price is different from one state to another states. As regards the pricing policy including the margin, he submits that the appellant from time to time have been declaring to their wholesale buyer and accordingly the assessable value were being declared to the R .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s -1980 (6) ELT 397 (Guj.) (iv) Union of India & Others Vs. S.S.M. Bros. Pvt. Ltd. and Another - 1986 (24) ELT 269 (Mad.) (v) Ind-Sphinx Precision Pvt. Ltd. Vs. Collector of Central Excise, Chandigarh - 1994 (74) ELT 683 (Tribunal) From the above judgment the learned Counsel argued that even if discount is not uniform, on this ground deductions of such discount cannot be denied. In the present case there is no dispute the 2% margin on account of replacement was uniformly given to their whole .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n of the Revenue that the assessable value should include 2% margin then the value shall not be wholesale value, it will be retail sale price which is not correct as per the provision of Section 4 of Central Excise Act, 1944. It is his submission that as against 2% margin of few debit notes for amount of ₹ 2,41,337/- were issued but no amount was received on that account from the wholesale buyer, therefore the contention of the Revenue that due to issuance of debit notes the amount of 2% m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the correct assessable value. He submits that since debit notes were raised in respect of 2% margin, then the particular element became conditional and the conditional discount are not permissible for deduction. He further submits that in the price declaration filed by the appellant they have not declared the 2% margin, therefore for this reason 2% margin is not permissible. Learned A.R. placed reliance on the various judgments as cited below:- (i) Neelkamal Plastics Ltd. Vs. CCE - 2004 (164) E .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

buyer in all over India regarding the margin of 2% towards damage and replacement. It is also found that this 2% margin was allowed to each and every wholesale buyer. Therefore contention of the Revenue that this margin is not uniform is apparently not correct. As regard the variation of the price from one state to another state, we find that the retail sale price remain same in all over India, however the wholesale price/assessable value varied from one state to another state only for the reaso .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nner. We do not agree with the learned Counsel that the debit note was issued symbolic and no amount was recovered against such debit notes. We are of the view that once a debit note is issued, it is not merely a symbolic but amount of the debit notes become legally recoverable from the person who is wholesaler. Therefore in our view in as much as ₹ 2,41,337/- for which debit notes raised, it will attract excise duty. As regard the entire sale, there is no case of the Revenue that the 2% m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version