2016 (4) TMI 55 - AT - Central Excise

Valuation - Benefit of abatement - Provisional assessment - Denial of cash discount on the ground that the same is not passed on to all the dealers - Held that - Once the cash discount is allowed in the invoices, irrespective of the eligibility to the said discount, if any, of the buyer, same is passed on in the invoice itself. Therefore, the valuation provision read with the rules would not envisage rejection of such discounts when the same is not recovered later by the Manufacturer. The buyer based on the net price charged in the invoices, pays the amount to the Manufacturer and that becomes the transaction value. Therefore, there is no question of rejecting the benefit of abatement of such discount on the ground that the same is not actually passed on to the buyer. Abatement of Free Service Charges and Pre-delivery Inspection Charges - Held that - We find that the appellant had resorted to provisional assessment at the time of clearance of the goods to the dealers and claimed abatement of the said charges and did not pay duty on the same. Therefore, when no duty was paid, initially in view of the provisional assessment, the question of issuing credit notes, including the duty amount on such charges, never arose. The Commissioner (Appeals) has not applied the facts of the case to the issue in question. Proper finalization of provisional assessment based upon proper computation of assessable value, taking into account the abatement claimed and the short levy/excess levy involved - Held that - We find that though this plea has been raised in the Grounds of Appeal, there has been no findings either in the impugned Order in Appeal or in the Order in Original. While finalizing the assessment, the impugned orders do not arrive at the value of each Motorcycle/Moped after taking into account all the abatements allowed/disallowed and arriving at assessable value from cum-duty value. Abatements are applicable for all vehicles cleared and each exclusion or inclusion is applicable for every motor cycle, scooter, moped cleared and the original authority should have determined the assessable value by first deducting the abatement element and thereafter arriving at assessable value for calculating the differential duty/excess duty. Reliance made by the appellants in the case of ACCE & Others Vs. MRF (1986 (12) TMI 35 - SUPREME COURT OF INDIA ), wherein it has been held that abatements should be cumulatively deducted from the cum-duty price to arrive at the cum-duty value and thereafter the assessable value should be arrived at.Accordingly, we direct the authority to recompute after adjusting the excess paid. Vis- -vis the demand and finally arrive at the differential duty. Abatement towards cash paid under Section 3(4) of TNGST Act - Held that - The liability to pay this tax on the value of input purchased arises only in the event of transfer of final products outside Tamil Nadu, i.e., on stock transfer. This tax is nothing but a levy on the finished excisable goods cleared from the factory and therefore excludable from value in t terms of Section 4. The event of taxation is the sale of manufactured final products. The appellant paid the tax as a seller of goods, of course, on the purchase value of inputs. Besides, it is a levy on sale of goods. The abatement for this Tax allowed in the impugned order is correct and therefore, the appeal filed by the department merits dismissal. Abatement of Trade Discounts - Held that - Commissioner (Appeals) in the impugned Order in Appeal, have allowed abatement of discount on the ground that all the factors propounded by the Supreme Court in various decisions have been satisfied by the appellant manufacturer and he has held that the rejection of the abatement of such discounts on the ground that they were not made known prior to the removal of goods is not correct. We also find that the Commissioner (Appeals) relied upon mainly two factors (i) various circulars have been issued by the Manufacturer/Appellant regarding granting of such discounts, much before the removal of goods and (ii) even otherwise, the granting of such discounts were known under established practice to the dealers. The findings of the Commissioner (Appeals) have not been rebutted by the revenue in their grounds of appeal.

Summary

Issues Involved:
1. Equalized Freight
2. Cash Discount
3. Free Service Charges (FSC) and Pre-Delivery Inspection (PDI) Charges
4. Manner of Finalization of Provisional Assessment
5. Tax Paid under Section 3(4) of TNGST Act
6. Trade Discounts

Issue-wise Detailed Analysis:

1. Equalized Freight:
The Commissioner (Appeals) disallowed the abatement of equalized freight for the period from 1.7.2000 to 28.2.2003, citing that the freight should have been shown separately in invoices as per Rule 5 of the Valuation Rules. However, the Tribunal noted that Rule 5 did not impose an absolute prohibition on claiming abatement if the freight was not separately indicated. The Tribunal referenced several case laws, including the Supreme Court decision in CCE, Noida Vs. Accurate Meters Limited, and concluded that the appellants are eligible for deduction of equalized freight even if not shown separately in the invoices, as long as the actual price is proved by a Chartered Accountant's Certificate.

2. Cash Discount:
The Commissioner (Appeals) disallowed cash discounts where they were not actually passed on to the buyers. The Tribunal held that cash discounts should be deductible from the assessable value irrespective of whether they are availed by the buyer, provided they are indicated in the invoices. The Tribunal cited the Larger Bench decision in Commissioner of Central Excise, Ahmedabad III Vs. Arvind Mills Limited and other case laws, affirming that appellants are eligible for deduction of cash discounts.

3. Free Service Charges (FSC) and Pre-Delivery Inspection (PDI) Charges:
The Commissioner (Appeals) disallowed the abatement of FSC and PDI charges, assuming that the appellant collected the entire amount, including duty, from the dealer. The Tribunal referenced the Supreme Court decision in the appellant's own case and other relevant case laws, which held that such charges incurred by the dealer post-sale are not relevant for excise duty. The Tribunal concluded that the appellants are eligible for deduction of these charges, as they did not collect excise duty on the amounts claimed as deductions.

4. Manner of Finalization of Provisional Assessment:
The appellants contended that the provisional assessment was not finalized correctly, as the assessable value was not computed properly by taking into account all abatements allowed/disallowed. The Tribunal directed the authority to recompute the assessable value by deducting the abatement elements and adjusting the excess paid against the demand, referencing the Supreme Court decision in ACCE & Others Vs. MRF.

5. Tax Paid under Section 3(4) of TNGST Act:
The Revenue appealed against the allowance of abatement for the tax paid under Section 3(4) of the TNGST Act, arguing it was not a tax on the final product. The Tribunal upheld the Commissioner (Appeals)'s decision, stating that the tax is a levy on the finished excisable goods cleared from the factory and is therefore excludable from the assessable value under Section 4.

6. Trade Discounts:
The Revenue contended that trade discounts should not be allowed as they were not disclosed to the dealers prior to the removal of goods. The Tribunal found that the Commissioner (Appeals) correctly allowed the abatement of trade discounts, as the discounts were known to the dealers through circulars issued by the manufacturer and were part of established practice. The Tribunal rejected the Revenue's appeal on this ground.

Conclusion:
The Tribunal allowed the appeals filed by the assessee, granting abatements on equalized freight, cash discount, PDI, and FSC charges, and directed proper finalization of provisional assessment. The Tribunal rejected the Revenue's appeals, upholding the Commissioner (Appeals)'s decision on the abatement of tax under Section 3(4) of the TNGST Act and trade discounts.