TaxTMI 
TaxTMI 
2018 (6) TMI 323
X X X X Extracts X X X X
X X X X Extracts X X X X
....rters who were holding DEEC license, they were giving an additional discount on the condition that the said buyers would transfer the Intermediate License in their favour. The said intermediate licenses enable them to import inputs used in manufacture of PTA duty free. Revenue challenged this extra discount given to these exporters on the ground that the appellants are receiving the extra consideration in the shape of intermediate advance license and therefore, the same amount to extra consideration and needs to be included in the value of the goods cleared for the purpose of payment of duty. The appellant fairly concedes that the issue is covered by the decision of Hon'ble Apex Court in the case of IFGL Refractories Ltd. - 2005 (186) E....
X X X X Extracts X X X X
X X X X Extracts X X X X
....issuing showcause notice in the year 2006. He further pointed out that they have been filing the price declaration and in the said declaration, they were clearly mentioning that they were operating extra discount but were following the DEEC root to export. He pointed out that during the correspondence with the Revenue, the exact manner in which the DEEC rate was adopted was discussed and Revenue was fully aware of the issue of intermediate advance license. 2.3 He further argued that in the show-cause notice, allegation has been made out to the failure of appellants to give data for the purpose of issue of show-cause notice despite letter and summons. He argued that failure to give data itself not amount to suppression of facts. 2.4 He fur....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... any validation of advance intermediate license at any place. He further pointed out that the appellant's letter dated 15.2.2001 only mentioning invoice no., date and quantity and it does not disclose the original discounts being offered to buyers. 3.1 The learned AR further pointed out that though the decision of the Tribunal in the case of IFGL Refractories - 2001 (134) ELT 230 (Tri) dated 28.7.2000 was in line with the appellant's instant case but the decision of the Tribunal in the case of Tata Refractories dated 22.1.2002 was not on the same line. In these circumstances, the appellants could not have had bona fide belief simply on the basis of case of IFGL (supra). He also relied on the decision of the Tribunal in the case of Liebherr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is apparent that the appellant could have bona fide belief that the value of intermediate advance license is not includible as extra consideration during the currency of the decision of the Tribunal in the case of IFGL Refractories Ltd. passed on 28.7.2000. However, Revenue was within its right to have the different view on the strength of the decision of the Tata Refractories Ltd. (supra) passed on 22.1.2002. In these circumstances, the bona fide belief of the appellant that they were entitled to the benefit could not be doubted. Similarly, since Revenue had challenged the decision of IFGL in the Apex Court and Revenue was of the opinion that the decision in the case of Tata Refractories could have changed the bona fide view of the appella....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eration has been decided by the Hon'ble Apex Court in the case of IFGL (supra). The appellants have sought to distinguish the said decision on the ground that the definition of consideration appearing in sub-section2(d) of the Indian Contract Act excludes any consideration received which was not at the desire of the appellant. It is seen from the price list of the appellant that they were offering the extra discounts subject to the buyer complying all the legal requirements for obtaining the advance license. Therefore, discount to exporter was offered in the following manner: - "For customers in Maharashtra 9,500.00 For Customs in Delhi/Punjab 0.00 For Customers in Gujarat State Quantity upto 950 MT 6,500.00 Quantity from ....