9911796707
TMI Blog2016 (7) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ts on records in respect of unit no.1 are that on scrutiny of the trial balance for the period 2005-06 to 2009-10, sample copies of the commercial invoices an ER-1 return for the relevant period of the another unit of the party situated at D-28, SMA Indl. Area, G.T.Karnal Road, Delhi (unit No.1), it was observed that the assessable value shown in the Central Excise invoice was 4% less than the assessable value shown in the commercial invoices for the same goods and accordingly, the unit No.1 of the appellant had short paid the duty as per the value shown in their commercial invoices. It was also observed that the value as per ER-1 return (assessable value + duty) did not tally with the domestic sales value shown in the trial balance f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dealers only on effecting the sales which arose only once the process of manufacturing was completed. Availment of Cenvat Credit of service tax and utilization thereof for payment of central excise duty resulted in clearance of excisable goods without payment of duty. 4. As regards the first issue that a fact of actual availment of cash discounts by the assessee's customer is concerned, learned advocate appearing for the appellant submits that though they have produced complete reconciliation of figures before the adjudicating authority, it has not accepted the same. Such reconciliation in any case, would no longer be relevant inasmuch as the legal issue now stands decided by the Hon'ble Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereas previously, the value of such excisable goods was the price at which such goods were ordinarily sold in the course of wholesale trade, post amendment each transaction is looked at by itself. However, "transaction value" as defined in sub-clause (3)(d) of Section 4 has to be read along with the expression "for delivery at the time and place of removal". It is clear, therefore, that what is paramount is that the value of the excisable goods even on the basis of "transaction value" has only to be at the time of removal, that is, the time of clearance of the goods from the appellant's factory or depot as the case may be. The expression "actually paid or payable for the goods, when sold" only means that whatever is agreed to as the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the customers, they were paying duty, we, at this point of time, are of the view that reconciliation has become the secondary issue in view of the legal issue having been settled in favour of the assessee. If the cash discounts offered by the appellant, are required to be considered and the assessable value has to be recalculated based upon such offers of discounts, in terms of the Supreme Court decision, the present demand of duty on the ground that such cash discounts do not stand availed by the appellants' customers in most of the cases, falls to the ground. As such, on this count, we are of the view that demand cannot be confirmed against the appellant. 7. As regards the second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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