TMI Blog2018 (7) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant in terms of the business policy, which was widely known as “Trade Discount” and they had also made adequate disclosures to the Revenue. The Trade Discount under dispute was known to all, prior to removal of the goods, and the same have also been given at the time of clearance. Accordingly, the same is permissible under Section 4 of the Act. Appeal allowed - decided in favor of appellant. - APPEAL No. E/567-568/2009-EX[DB] - A/71006-71007/2018-EX[DB] - Dated:- 7-12-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Nishant Mishra, Advocate (In Appeal No. E/567/2009) for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for Respondent ORDER Per: A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration are required to be available in the showroom condition (i.e. in immaculate condition) to attract the customers. The life of such Demo Cars is six months. However, in case of any damage or accidents the car may have to be replaced more frequently. The dealers are therefore required to sell such Demo Cars in the used car market to the end customers frequently (usually six months) and buy brand-new car to replace the ageing demo cars to meet the objective. This process of keeping Demo Cars in good condition definitely means a substantial cost to the dealers. To meet a part of such cost, at one hand and encouraging them to maintain the requisite number of Demo Cars, the appellant offered them a fixed monetory benefit. Needless to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not correctly assessing the duty payable on the excisable goods, Rule 8 (ibid) by not paying the appropriate duty payable on the goods removed during a particular month by the 5th of the following month. It is further alleged that the appellant was intimated by the Jurisdictional Superintendent of Central Excise by letter dated 16/12/2005, that in view of non-compliance by them, the clearance of Demo Cars shall be treated as removal without payment of appropriate duty intentionally and render such dispatches and the person responsible for such dispatches liable to be proceeded against as per the Central Excise Act, 1944 and Central Excise Rules, 2002. Statement of Mr. Surendra Agarwal, General Manager was recorded under Section 14 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpose penalty and also personal penalty was proposed on the GM (Finance), Mr. Surendra Agarwal. 5. Subsequently, corrigendum to the Show Cause Notice was issued on 20/12/2006, acknowledging that the appellant has deposited the amount as mentioned in the Show Cause Notice prior to issue of the SCN, in September, 2006 and further the name of the appellant/noticee was corrected and the name of the GM (Finance) Mr. Surendra Agarwal was also added in the SCN. 6. The SCN was adjudicated on contest vide OIO dated 31st January, 2008 confirming the proposed duty allegedly short paid along with equal amount of penalty under Rule 25 of the Central Excise Rules, 2002. Further personal penalty of ₹ 1,00,000/- was imposed under Rule 26 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the appellants argues that there is no mischief or fault on the part of the appellant, in giving Trade Discount. The same is fully allowable, being the transaction value under the facts and circumstances of the case. The appellant also relies on the ruling in the case of Union of India Versus Bombay Tyres International Pvt. Ltd. 1984 (17) ELT 329 (S.C.) and also on the ruling in the case of Purolator India Ltd. Versus CCE 2015 (323) ELT 227 (S.C.). Further states that Trade Discount has nothing to do with advertisement, as cost of advertisement is already loaded in the value of the car. Further no evidence to the contrary is found by the Department. At any rate, post sale activity, such as advertisement, etc. is wholly irrelevant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ford India case (supra) makes no difference, as doctrine of merger gets attracted only when higher forum/court passes orders on merits and not when the appeal is dismissed on the ground of delay, as has been held in the case of State of Kerala Versus Kondottparambanmoosa (2008) 8 SCC 65. The ld. counsel also states that as the Co-ordinate Bench rulings are per-incuriam, have not dealt with the law involved and the facts in detail, the same have got no binding precedent and hence reference to a Larger Bench is not required. On this topology, he relies on the ruling of the Apex Court in the case of State of U. P. Versus Synthetics and chemicals Ltd. 1991 4 SCC 139. 9. Accordingly, the learned Counsel prays for allowing the appeal with con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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