TMI Blog2000 (9) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... butors; (4) Stock liquidation discount; and (5) Uniform Discount. Therefore, we consider it advantageous to dispose of these appeals by a common order. 2.Transactions which have given rise to these appeals are of the period from 1981 to 1985. Appeal E/1088/90-A covers discount on all the abovementioned counts. Therefore, that appeal is taken as the main appeal and is dealt with hereunder. 3.Learned Counsel representing the appellants advanced an argument that gunny bags in which soda ash was sent to dealers were durable and returnable containers. Manufacturer, appellants herein, had issued circulars requiring the dealers to return the gunny bags for re-use. Pursuant to those circulars dealers were returning the gunny bags which co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in their accepted sense of the term used in the section. This finding of the Tribunal was confirmed by the Supreme Court and the appeal was dismissed. Therefore, we consider it necessary to find the factual position in the case on hand. 5.Reliance was placed by the Learned Counsel representing the appellant on letters dated 15th December, 1970, 1st February, 1971 and 2nd April, 1971 to bring out the arrangement for the return of the durable packing, namely, gunny bags. These letters were not in evidence before the adjudicating authority or the appellate authority. They were made available to the Collector only on 1st June, 1990, subsequent to the appellate order issued by him. So, the Collector had no opportunity to pronounce on these d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understanding of that letter, we read the operative portion of the same - "We invite your attention to Circular No. CON/G-50/70 dated 15th December, 1970, wherein we had agreed that customers could send their own packing materials - jute, cloth, plastic etc. to our Works at Mithapur for use in packing the bulk Soda Ash. While we would be pleased to receive such packing materials from our customers, to avoid problems with the Excise and the Railway authorities and to facilitate the filing of the product at our Works at Mithapur, we shall be glad if the customers send unbranded bags only of the following specifications". This letter requires the customers to send their own bags for packing the Soda Ash. This letter does not make mention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tonnes of Soda Ash Light. This credit Note does not help the appellant since it relates to supply of March 1988, while the period covered by the present dispute is from 1981 to 1985, Documents produced by the appellant as additional documents are seen at pages 19 to 26 to show that customers were requiring the manufacturer to use customers own bags for packing soda ash. In case, bags sent by them were found insufficient to pack the quantity, they requested the manufacturer to despatch the materials in bags duly packed and to charge packing charges. In the letter sent by M/s. Ultramarine Pigments Ltd. seen at page 24, customers made it clear that it is very difficult to send the sound bags for reuse by the manufacturers factory. From thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2-1980 by a Learned Single Judge. Union of India challenged the said order before Division Bench. On 7-7-1980 Division Bench dismissed the appeal. Union of India took up the matter to the Supreme Court filing Special Leave Petition (Civil No. 9789/80). On 2-5-1984, Supreme Court rejected the Special Leave Petition stating that "The Special Leave Petition is rejected having regard to the peculiar facts and circumstances of the present case". Subsequently Civil Miscellaenous Petition No. 19994/86 was filed and the order dated 2-5-1984 was corrected to be Civil Appeal No. 1217/82 which was filed against the order of the Bombay High Court dated 7-7-1980. Affidavit filed on behalf of the manufacturer in SLP No. 9789/80 is in evidence in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. In Final Order No. 948/97-A dated 23-5-1997 this Tribunal stated that once the price in respect of distributor was accepted, the same should be the basis with reference to the others as it was held by the Supreme Court in the case of Indian Oxygen Private Ltd., 1988 (36) E.L.T. 723. In the case on hand, Collector (Appeals) in his order stated that trade discount allowed to distributors are not to be included in the assessable value. When such commission is excluded, we arrive at the assessable value. That assessable value should be the basis for the assessment of the goods removed from the factory. This legal position cannot now be disputed. So we hold that the entire removal should be assessed on the basis of the value after deducting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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