2014 (3) TMI 742 - AT - Central Excise

Duty demand - Cash discount policy - While assessee were paying differential duty on the sale at the factory gate, no duty was paid on the cash discount not availed by the buyers at depot, resulting in short payment of duty - Held that - The difference price has to be considered as representing an element of interest on account of delay in payment and unless it is established that such difference in price is so vast that in actually amounts to charging part of the price in the form of interest, the same cannot be rejected, and shall be the price applicable even in respect of those cases where cash discount is not availed of - Following decision of CCE, Ahmedabad v. Arvind Mills Limited 2006 (11) TMI 230 - CESTAT, MUMBAI - Stay granted.

Summary

Issues involved:
Short payment of duty on cash discount not availed by buyers at depot, appeal against demand of duty, interest, and penalty, citing judgments of CESTAT in favor, consideration of cash discount as abatement, stay of pre-deposit of duty, interest, and penalty.

Analysis:

1. The appeal was filed by M/s. J.K. Paper Limited regarding the short payment of duty amounting to Rs. 1,50,611/- due to the non-payment of duty on cash discounts not availed by buyers at the depot. The appellant had a cash discount policy for buyers at the factory gate, but no duty was paid on discounts not availed by depot buyers. The original authority confirmed the demand, imposed penalties, and ordered payment of interest.

2. The Commissioner (Appeals) disallowed the appeal concerning the demand of duty and interest. However, the appeal against the penalty was partially allowed, granting a reduced penalty of 25% if the duty, interest, and the reduced penalty were paid within 30 days of the order.

3. The appellants cited two CESTAT judgments in their favor, including the case of CCE, Ahmedabad v. Arvind Mills Limited and Lucas TVS v. CCE, Chennai. The judgment in the Arvind Mills case stated that the difference in price, representing an element of interest due to delayed payment, should be considered as abatement unless it is proven to be excessive. The Tribunal agreed with this view, holding that cash discounts, whether availed or not, should be granted as abatement.

4. Based on the legal position and the observations from the Arvind Mills case, the Tribunal found justification in granting a stay of pre-deposit of duty, interest, and penalty. Consequently, the stay petition was allowed, waiving the pre-deposit until the finalization of the case.

This detailed analysis covers the issues of short payment of duty, appeal against demand of duty, interest, and penalty, consideration of cash discount as abatement, and the grant of stay regarding pre-deposit of duty, interest, and penalty as discussed in the judgment by the Appellate Tribunal CESTAT AHMEDABAD.