TMI Blog2018 (6) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... not paying duty may be bona fide but in failing to furnish information it cannot be said to be bona fide. It was with obvious attempt to scuttle or delay the issue of notice - invocation of extended period justified. Valuation - includibility of the value of the intermediate advance license of extra consideration - Held that: - 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 - From the remarks on the price list of the appellant, it is apparent that intermediate advance license was obtained at the desire of the appellant and thus, the argument of the appellant that the said intermediate license does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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) ELT 529 (SC). Learned Counsel sought to distinguish the said decision on the ground that the intermediate advance license does not qualify as a consideration in terms of Section 2(d) of the Indian Contract Act, 1872. He argued that in terms of the said definition of consideration, appearing in the Indian Contract Act, 1872 only when the promisee at the desire of promisor promises t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scussed 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 further argued that the impugned order relies on the decision in the case of Tata Refractories Ltd. 2002 (141) ELT 460 (Tri-Kol) to assert that the Tribunal held the view that such discounts are not permissible. He argued that the facts in the case of Tata Refractories (supra) are substantially different in so far as in the said case actual cash consideration was passed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Machine Tools India P. Ltd. 2017 (357) ELT 971 (Tri- Bang). 3.2 Learned AR further argued that the eligibility for the terminal excise duty cannot be a reason for avoiding the liability of paying duty on the finished goods appropriately. He relied on the decision of the Tribunal in the case of IMP Power Ltd. 2014 (311) ELT 309 (Tri-Ahmd). He further argued plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appellant that the value of advance intermediate license is includible in the assessable value. In this background, it can be seen that the Revenue had started seeking data of the clearance made by the appellant. The sequence of efforts made by the Revenue for seeking the data are as follows: - (i) Letters dated 23.1.2005 (ii) Letters dated 7.2.2005 (iii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1000MT and above 4,500.00 For customers in Allahabad/UP State 0.00 For customers in other states/UT 6,500.00 Subject to their complying with all legal requirements for obtaining supplies with reference to Advance Licenses. The discounts may be allowed on the Basic Price for payment of Excise Duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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