2014 (2) TMI 717 - AT - Central Excise

Valuation - inclusion of Cash discount - the assessable value shown in the Central Excise invoice was 4% less than the assessable value shown in the commercial invoices for the same goods - Held that - full amount of value including 4% discount was charged from the buyer in the commercial invoices. During hearing they could not satisfy that in such situation where full value has been realized by them by way of commercial invoice and later records have been scored out by getting debit notes issued and resultantly paying no duty on the same. No reconciliation relating to differential value found in the trial balance including the value of the availed cash discount could not be proved by any evidence. It is explicitly clear that invoices issued under Rule 11 do not indicate the value of offered/availed cash discounts and where the cash discount has been availed of by the buyers, the value of a availed cash discount cannot form the part of the value of commercial invoices, issued simultaneously for the purpose of computation of value of total sales. Hence, the question of inclusion of value of availed cash discount in the differential value found in the trial balance does not arise. - Valuation provisions are very clear that cash discount is admissible discount if it fulfils the policy requirement of the company and uniformly given to all the buyers. However, lack of any evidence in their favour, we find the preponderance of probability is in favour of the Revenue - Conditional stay granted.

Summary

Issues:
1. Duty confirmation, interest, and penalty imposition for Unit No.1 of M/s. Jaquar & Co. Ltd.
2. Recovery of cenvat credit of service tax for Unit No.2 of M/s. Jaquar & Co. Ltd.
3. Discrepancies in assessable values and cash discounts leading to short payment of duty.
4. Admissibility of cash discounts, validity of debit notes, and utilization of service tax credit.

Analysis:
1. The judgment addressed duty confirmation, interest, and penalty imposition for Unit No.1 of M/s. Jaquar & Co. Ltd. The Commissioner confirmed duty amounting to Rs.2,63,87,854/- along with interest and imposed a penalty of the same amount for the period 2005-06 to 2009-10. Additionally, a penalty of Rs.10 lakhs was imposed on the Director of Unit No.1. The discrepancies in assessable values from commercial invoices and ER-1 returns led to the short payment of duty, requiring the submission of reconciliation, which revealed intentional misrepresentation to claim excess amounts, along with discrepancies in cash discount values.

2. Regarding Unit No.2 of M/s. Jaquar & Co. Ltd., the judgment focused on the recovery of cenvat credit of service tax. The company availed and utilized cenvat credit of service tax on invalid documents, leading to the clearance of excisable goods without payment of duty. The utilization of service tax credit on sales commission, deemed as a post-manufacturing activity, was also questioned for its admissibility.

3. The analysis delved into discrepancies in assessable values and cash discounts, highlighting the short payment of duty. The appellant claimed cash discounts in invoices but charged the full amount in commercial invoices, leading to a clear short levy. The issue of reconciling differential values found in trial balances, including availed cash discounts, lacked supporting evidence. The judgment emphasized that the value of availed cash discounts cannot be included in the computation of total sales value, as per valuation provisions.

4. The judgment scrutinized the admissibility of cash discounts, validity of debit notes, and utilization of service tax credit. The lack of evidence supporting the appellant's claim regarding cash discounts raised doubts, favoring the Revenue's stance. Consequently, the appellant was directed to deposit a specified amount within a stipulated period, with waivers and stays on recovery subject to compliance.