2019 (9) TMI 746 - AT - Central Excise

Valuation - whether the discount passed by the respondent @0.70 per kg to BEST during the relevant period June 2009 to April 2010 is admissible or be added to the value as an additional consideration for the CNG sold? - HELD THAT - The revenue disputed the correctness of the said discount only after the agreement dated 12.05.2008 was executed allowing the respondent to sale CNG to outside vehicles - the second agreement dated 12th May 2008 is a separate transaction between the respondent and BEST for allowing outside vehicles to fill CNG at various filling stations installed by the respondent in the premises of BEST on payment of certain fees by the respondent to BEST. No investigation has been conducted by the revenue to establish the allegation that the discount offered by the respondent to BEST was in lieu of all infrastructural facilities extended by BEST to the respondent. There is no reason to interfere with the aforesaid finding of the Commissioner (Appeals) as in their appeal before this forum also, no contrary evidence has been placed by revenue - appeal dismissed - decided against Revenue.

Summary

Issues:
Determining the admissibility of the discount passed by the respondent to BEST as additional consideration for CNG sold.

Analysis:
1. The appeal was filed by the Revenue against the order-in-appeal passed by the Commissioner central excise, Mumbai. The case involved the respondent engaged in the production and distribution of compressed natural gas (CNG) under an agreement with BEST. The Revenue alleged that the discount passed by the respondent to BEST was in lieu of facilities provided by BEST, hence should be added to the assessable value of CNG sold.

2. The Revenue contended that the discount passed to BEST was additional consideration for facilities provided, citing a Supreme Court judgment. On the other hand, the respondent argued that the agreements with BEST were for separate commercial transactions, and the discount was not related to the fees paid for premises leased for supplying CNG to outside vehicles. The respondent highlighted substantial supplies made to BEST buses compared to outside vehicles during the disputed period.

3. The respondent also referred to a previous Tribunal judgment upheld by the Supreme Court, where trade discounts given to oil marketing companies were considered admissible. The Tribunal found that the discount passed to BEST was agreed upon in the initial agreement and not disputed until a subsequent agreement allowed sales to outside vehicles. The Tribunal upheld the Commissioner (Appeals) finding that no evidence supported the Revenue's claim of additional consideration for facilities provided by BEST.

4. The Tribunal's analysis of the evidences and the Commissioner (Appeals) finding indicated that the discount passed by the respondent to BEST was not in exchange for facilities provided by BEST. The agreements with BEST were deemed separate commercial transactions, and no evidence supported the Revenue's claim of additional consideration. As no contrary evidence was presented by the Revenue, the impugned order was upheld, and the Revenue's appeal was dismissed.