2009 (8) TMI 453 - AT - Central Excise

Valuation- discount- The appellants are manufacturers of fans which are cleared to their related persons, ( Intermediaries for short). The fans are thereafter sold by these parties to Ravi Marketing Ltd. ( RML for short) which is also a related person. The fans are sold at all stages. There is no dispute that the price of RML is to be adopted for the purposes of determining the value under Section 4 of Central Excise Act, 1944 ( Act for short). The appellants had claimed several deductions towards various elements in the price list in Part-IV filed by RML. After two rounds of litigation, in the impugned order, the Commissioner (Appeals) has disallowed the deductions claimed by the appellants on account of incentive scheme discount, average cash/prompt payment discount, advance payment discount and freight. The impugned order has been passed after matter had been remanded by the Tribunal to the original adjudicating authority on the plea made by the appellant that even though they have been asked to get chartered accountant s certificate before they could get the same and produce before the Deputy Commissioner/Assistant Commissioner, he had adjudicated the case and passed the order. The Tribunal had directed the Assistant Commissioner to examine the issue afresh after taking into consideration the certificate of cost accountant and to pass an order accordingly on providing an opportunity to the appellants. Held that- that the Commissioner (Appeals) was wrong in taking lowest figures of freight and we allow the deduction as per second set of figures by the Assistant Director (Cost) which include expenses incurred upto the stage of sale of RML i.e. including freight expenses incurred by the intermediaries. Summing up all the deductions claimed by the appellants in dispute are allowed. The figures of deduction other than cleared freight shall be based on the basis chartered accountant s report submitted by the appellants. It is also made clear that the deductions would be allowed mainly on actual figures submitted by the chartered accountant s report. The department would be free to verify the correctness of the chartered accountant s report if they so desire. As regards the freight, the deduction shall be allowed on the basis of report of the Assistant Director (Cost) and the figures given by the Assistant Director (Cost) the freight incurred by the intermediaries shall be taken into account. The matter is remanded to the original adjudicating authority for the purpose of working out the actual amount of duty payable.

Summary

Issues Involved:
1. Cash Discount
2. Advance Payment/Prompt Payment Discount
3. Incentive Scheme Discount
4. Freight Deduction

Issue-wise Detailed Analysis:

1. Cash Discount:
The appellants argued that cash discounts were allowed when payments were made within a stipulated period through bank negotiations. The lower authorities denied this benefit as the quantum was not separately verifiable. The appellants presented a chartered accountant's report detailing the cash discounts actually allowed. The Tribunal found that the department failed to show that such discounts were not passed on to the buyers or were given for extra commercial considerations. Therefore, the Tribunal concluded that the appellants are eligible for these discounts, except for the year 1991-1992, for which the chartered accountant did not certify the details.

2. Advance Payment/Prompt Payment Discount:
The lower authorities denied these discounts due to lack of uniformity in the quantum and the claim that no such discounts were passed on. The appellants cited Supreme Court decisions (Metal Box, 1995 and Government of India v. MRF, 1995) supporting the admissibility of these discounts if known prior to the removal of goods. The Tribunal noted that the department did not provide evidence that these discounts were given for extra commercial considerations or were not passed on to the customers. Hence, the Tribunal allowed these discounts for the periods certified by the chartered accountant, excluding the year 1991-1992.

3. Incentive Scheme Discount:
The appellants claimed deductions for basic incentive discounts and special discounts, which were denied by the lower authorities due to lack of uniform criteria and being based on negotiations. The Tribunal observed that incentive schemes, by nature, would not be available to all purchasers as they depend on factors like payment dates or purchase quantities. The Tribunal found no evidence from the department indicating that these discounts were given for extra commercial considerations. Thus, the Tribunal allowed these discounts for the certified periods.

4. Freight Deduction:
The appellants sought deduction of freight expenses incurred in transporting fans to intermediary related persons. The Commissioner relied on the Assistant Director (Cost)'s report, which included two sets of freight figures, one excluding and one including the expenses incurred by intermediaries. The Tribunal noted that the Commissioner (Appeals) did not consider the chartered accountant's report and refused to include intermediary freight expenses. The Tribunal disagreed, stating that all freight expenses incurred after factory clearance should be deducted to arrive at the factory gate price. The Tribunal found that the Assistant Director (Cost)'s report, based on sampling, was more detailed and verifiable than the chartered accountant's report. Therefore, the Tribunal upheld the use of the Assistant Director (Cost)'s second set of figures, which included intermediary freight expenses.

Conclusion:
The Tribunal allowed all disputed deductions claimed by the appellants for the periods certified by the chartered accountant, except for the year 1991-1992. For freight deductions, the Tribunal upheld the use of the Assistant Director (Cost)'s report, including intermediary expenses. The matter was remanded to the original adjudicating authority to work out the actual duty payable based on these findings.