2008 (12) TMI 494 - AT - Central Excise

Summary

Issues:
1. Pre-deposit of duty and penalty amount confirmed by the Commissioner.
2. Inclusion of transit insurance charges in the assessable value.
3. Rejection of deduction claim on account of discounts to customers.
4. Unconditional allowance of stay petition.
5. Stay on recovery of duty and penalty.

Analysis:

1. The appellant sought dispensation of the pre-deposit condition of duty and penalty amount confirmed by the Commissioner. The Tribunal had previously directed the appellant to deposit a sum of Rs. 1 Crore following an earlier order that upheld the inclusion of transit insurance charges in the assessable value. The appellant had filed an appeal before the Supreme Court challenging the Tribunal's decision, with a stay granted only on the penalty amount, not on the duty confirmed by the Tribunal. The Tribunal directed the appellant to deposit the duty amount of Rs. 1,11,29,068/- within 8 weeks.

2. The appellant contested the inclusion of transit insurance charges in the assessable value, arguing that the Tribunal's earlier decision was per incuriam and not applicable to their case. The Tribunal, after considering the arguments, found no merit in the appellant's contentions and upheld the duty confirmed on the grounds of transit insurance charges. The Tribunal ordered the appellant to deposit the duty amount as directed.

3. Regarding the balance duty amount of Rs. 1,48,50,555/- confirmed by rejecting the claim of deduction on discounts to customers, the appellant argued that the Commissioner's reasoning went beyond the show cause notice. The Tribunal agreed with the appellant that discounts offered at the time of sale are eligible for deduction, irrespective of whether they were actually passed on to each customer. Consequently, the Tribunal dispensed with the pre-deposit condition of the balance duty amount and the entire penalty amount.

4. The appellant prayed for an unconditional allowance of the stay petition, acknowledging that they were not facing financial difficulties to deposit the amount. However, the Tribunal did not find it necessary to grant the stay unconditionally, given the circumstances of the case.

5. The issue of stay on recovery of duty and penalty was also addressed, with the Tribunal noting that while the Supreme Court had granted a stay only on the penalty amount, no stay was granted for the recovery of duty. The Tribunal directed the appellant to comply with the deposit requirements within the specified timeframe, with a follow-up hearing scheduled for compliance assessment.