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2016 (7) TMI 770 - CESTAT NEW DELHI

2016 (7) TMI 770 - CESTAT NEW DELHI - TMI - Valuation - cash discount - short payment of duty - 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 - Held that:- Though the appellants have taken a categorical stand before the authorities below that the complete reconciliation was being made by them at the end of manufacturer, during the period involved in the present appeal, and wh .....

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he ground that such cash discounts do not stand availed by the appellants’ customers in most of the cases, falls to the ground. - Demand set aside. - Excise Appeal No. 56268-56269,56447-56448 of 2013 - FINAL ORDER NO. 52188-52191/2016 - Dated:- 14-6-2016 - Ms Archana Wadhwa, Member (Judicial) and Mr. V Padmanabhan, Member (Technical) Shri B L Narasimhan, Advocate for the Appellants Shri R K MIshra, AR for the Respondent ORDER All the four appeals are being disposed of by a common order as they a .....

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nit 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 for the period 2005-06 to 2009-10. The party .....

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lue of cash discount shown for the year 2005-06 to 2009-10 was tallying with the value shown in the trial balance. 3. As per facts on records, in respect unit No.2 are that the company was allowing rebate to dealers as per price on project supplies made to different buyers. These dealers were found to be availing these rebates by way of issuing debit notes to the assessee and were also charging service tax on these debit notes. The assessee was availing credit of service tax on the strength of t .....

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nufacturing 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. S .....

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le value for the purpose of payment of duty. In other words, Tribunal held that wherever the discounts have not been availed by the customers, even though offered by the assessee, the actual payment made by the customers would be liable to taxes. He said the order of the Tribunal stands reversed by the Hon ble Supreme Court. He has taken us to the said decision of the Hon ble Apex Court. 5. On going through the said decision, we find that the issue before the Hon ble Supreme Court was that as to .....

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the transaction value of such goods becomes determinable. Whereas 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 .....

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. Further, the expression when sold is not meant to indicate the time at which such goods are sold, but is meant to indicate that goods are the subject matter of an agreement of sale. Once this becomes clear, what the learned counsel for the assessee has argued must necessarily be accepted inasmuch as cash discount is something which is known at or prior to the clearance of the goods, being contained in the agreement of sale between the assessee and its buyers, and must therefore be deducted fro .....

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