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2016 (10) TMI 79 - CESTAT MUMBAI

2016 (10) TMI 79 - CESTAT MUMBAI - TMI - Valuation - deduction of discount - discount was given to non-performing dealers also - turnover discount was quantified at the end of calendar year, wherein dealer has sold the cars of previous year - discount was made known to dealers in advance - Held that:- the impugned order is not sustainable in respect of all the three points; as regards of extending the discount to non performing dealers, the denial of deduction of such discount from the assessabl .....

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ment - unjust enrichment - Held that:- in the appellant's own case, as reported at [2014 (12) TMI 158 - CESTAT MUMBAI] the Tribunal has held that the discount which are extended by credit notes are also eligible for deduction. Also the same view has taken by Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pvt. Ltd. Vs. CCE, LTU, Bangalore [2011 (10) TMI 201 - KARNATAKA HIGH COURT] which was followed by the Principal Bench of Tribunal in the case of CCE Vs BSL Ltd. [201 .....

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on the last day of such calendar year. Only reason given by the lower authorities for rejecting the contention that the dealer has not sold the cars manufactured and cleared to him by the appellant of the same calendar year. We find no merits in this argument as the turnover discount is an advancely intimated discount without any qualification as to which cars are to be sold to be eligible for Turnover Discount; the circular only states that to be eligible for Turnover Discount specific number o .....

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ellant - APPEAL No. E/1369/05, E/1928 to 1930, 2728/06 & E/180/07 E/1369/05, E/1928/06, E/1929/06, E/1930/06, E/2728/06, E/180/07 - A/90007-90012/16/EB - Dated:- 17-8-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Gajendra Jain, Advocate with Shri Rajesh Ostwal, Advocate for Appellants Shri Ajay Kumar, Jt. Commr. (A.R.) for Respondents ORDER Per M. V. Ravindran All these appeals are directed against Orders-in-Appeal No. PI/41/2005 dated 13.01.2005, PI/4 .....

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rate and allowing the quantity discount based on turnover of the said dealers. The discount proposed to the dealers is determined on the calendar year based performance on off take. On the request of the appellant herein, the assessment were provisional. The said provisional assessment were finalised; the turnover discount, adjustment towards excess and short payment and extending discount to the dealers even for non-adjustment was not granted and demand was for differential duty along with int .....

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unt was quantified at the end of calendar year, wherein dealer has sold the cars of previous year. As regards the first issue he would submit that deduction of all turnover discount are squarely covered by the decision of Dabur India Ltd. Vs. CCE [2003 (157) ELT 426 (T)], Mark Auto Industries vs. CCE [2003 (162) ELT 261 (T)], Rama Vision Vs. CCE [2003 (162) ELT 664 (T)] and Hindustan Lever Vs. CCE [2005 (189) ELT 434 (T)]. As regards the second issue of denial of adjustment of excess duty paid t .....

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CE [2016-TIOL-138-CESTAT-MUM] categorically laid down law such as to adjustment the excess payment of duty and short payment of duty can be made when provisional assessment are finalised. Same view had been taken by the Tribunal in the case of Jonas Woodhead & Sons Vs. CCE [2015 (329) ELT 577 (T)]. He would submit that the demand confirmed under this head is liable to be set aside. It is his further submission that as regards the issue of allowing of discount even to non-achieving dealers, t .....

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rate of discount is based on performances of the dealers vis a vis sales, as since is not known at the time of clearance appellant requested to asses it under provisional assessment under rule 7 of CER 2002. Provisional Order was passed vide order dated 26/9/2000. iii) Provisional order was passed on the basis of Quantity Discount Scheme made known to assesse and existing after 01/6/2003 onward. iv) Appellant intimated scheme vide lr no 2/6/03 ie duty discount for 'E','C' and  .....

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the said amount and some refunded amount of ₹ 38,225/ - was ordered for recovery saying that there is no provision to adjust the amount in C.Ex provisions .Refund can be claimed only under 11B of CEA 1944. viii) Commissioner (Appeals) upheld the order of revenue and allowed the revenue's appeal on the following grounds. a) Party is required to file a separate refund application under sec 11 b of the CEA '44. b) Duty burden has already passed to the customer and it is incorrect to a .....

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pertain to the period prior of consideration of final assessment or pre owned cars owned by the dealers. x) In view of above the appeal of the Appellant shall be rejected. He also relied upon the case laws:- i. Rajasthan Processors (I) Ltd. Vs. Collector [1994 (70) ELT A182 (S.C.)] ii. Commissioner of Central Excise, Jaipur-II Vs. Adarsh Guar gum Udyog [2000 (120) ELT 138 (Tribunal)] iii. S. Kumar s Ltd. Vs. Commissioner of Central Excise, Indore [2003 (153) ELT 217 (Tri.-LB)] iv. Addison and Co .....

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herein informed the dealers in advance as to the discounts offered and eligibility thereof; the said scheme was applicable and extended to all the dealers of the appellant; the assessment were provisional on the request of appellant and were taken up for finalisation. Revenue s case is that appellant is not eligible to claim the deduction of trade discount which is named as turnover discount and adjustment of duty with short payment of duty of finalisation and extending discount to non performin .....

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ncourage the dealers to work more efficiently and get orders for cars which will benefit the dealers as well as the appellant. 8. As regards the adjustment of excess payment of duty to short payment of duty on the finalisation of the provisional assessment, we find that in the appellant s own case, as reported at [2014 (307) ELT 182 (Tri.-Mum.)] the Tribunal has held that the discount which are extended by credit notes are also eligible for deduction. We find that the Hon'ble High Court of K .....

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l basis and the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, may order allowing payment of duty on provisional basis at such rate or on such value as may be specified by him. (2) The payment of duty on provisional basis may be allowed, if the assessee executes a bond in the form prescribed by notification by the Board with such surety or security in such amount as the Assistant Commissioner of Central Excise or the Deputy Commissioner .....

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six months from the date of the communication of the order issued under sub-rule (1) : Provided that the period specified in this sub-rule may, on sufficient cause being shown and the reasons to be recorded in writing, be extended by the Commissioner of Central Excise for a further period not exceeding six months and by the Chief Commissioner of Central Excise for such further period as he may deem fit. (4) The assessee shall be liable to pay interest on any amount payable to Central Government .....

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ified by the Central Government by notification issued under Section 11BB of the Act from the first day of the month succeeding the month for which such refund is determined, till the date of refund. (6) Any amount of refund determined under sub-rule (3) shall be credited to the Fund : Provided that the amount of refund, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (a) the duty of excise paid by the manufacture, if he had not passed on the inc .....

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duty in pursuance of a provisional assessment order, if he is dealing with more than one goods, they have to be treated separately. Even though the duty payable under the Act is to be calculated under each head of each case ultimately it is the total duty payable for all the goods which are the subject matter of the provisional assessment and final assessment which is to be taken into consideration. If after taking into consideration the duty payable in respect of all the goods and the duty pai .....

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