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2016 (10) TMI 79

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..... 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. [2014 (9) TMI 771 - CESTAT NEW DELHI]. Therefore, in view of the authoritative jurisdictional pronouncement, we have to hold that the excess payment of duty to the short payment of duty on finalisation of provisional assessment is to be allowed. Duty liability - turnover discount extended - Held that:- it is seen from circular of appellant that this turnover discount specifically states that the said discount is available to all the dealers beginning on the first day of calendar year and ends 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 dis .....

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..... s that as regards turnover discount to the dealers slab wise, it is not in dispute the said discount was made known to dealers in advance and was also passed on to them at the end of year on performance review. The lower authorities have rejected the contentions in the finalisation only on the ground the turnover discount 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 to short payment of duty, he would submit that the excess payment of duty and short payment of duty on finalisation was sought to be denied on the ground that the excess payment needed to be considered from the angle of unjust enrichment. He would submit that the issue is no more res integra as the Hon'ble High Court of Karnataka in the case of Toyota Kirloskar Auto Parts Pv .....

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..... 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 adjust the excess duty short paid even when he was of the view that the duty incidence has been passed to the end user and was required to credited to the welfare Fund. c) it is settled law in the matter of M/s Sngham Processors (Bhilwara) Ltd Vs Collector, 2000(120)ELT 138(T) held that once the duty burden was passed on to the customer at the time of clearance of goods, issuance of credit notes at subsequent stage would not alter the position. ix) It is also proved that the discount amount does 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 .....

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..... the rate of duty applicable thereto, he may request the Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, in writing giving reasons for payment of duty on provisional 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 of Central Excise, as the case may be, deem fit, binding the assessee for payment of difference between the amount of duty as may be finally assessed and the amount of duty provisionally assessed. (3) The Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be, shall pass order for final assessment, as soon as may be, after the relevant information, as may be required for finalizing the assessment, is available, .....

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..... nal 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 paid in pursuance of the final assessment order, if still the assessee is due in any duty, then for the short fall in payment of duty, the assessee is liable to pay interest. The said ratio was followed by the Principal Bench of Tribunal in the case of BSNL [2014-TIOL-1410-CESTAT-DEL.]. In view of the authoritative jurisdictional pronouncement, we have to hold that the excess payment of duty to the short payment of duty on finalisation of provisional assessment is to be allowed. 9. As regards the duty liability on the turnover discount extended, it is seen from circular of appellant that this turnover discount specifically states that the said discount is available to all the dealers beginning on the first day of calendar year and ends 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 .....

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