9911796707
TMI Blog1989 (8) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... hit by limitation under Rule 173-J read with Rule 10 of the Central Excise Rules, 1944. Shri S. Krishnamurthy, the learned Senior Departmental Representative opposes the petition. On a consideration of the submissions made, we find that the petition seeks to add ground to the appeal on limitation which, being a question of law, is allowed. Appeal No. E/874/81-A - The appeal is directed against the order dated 28-2-1981 passed by the Central Board of Excise Customs which had upheld the order dated 10-7-1980 passed by the Collector of Central Excise, New Delhi upholding the demand for duty of Rs. 1,28,824.23 under Rule 9(2) of the Central Excise Rules. The Board, however, set aside the penalty on the appellants imposed by the Collector. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the Board had not given due consideration to the deduction of the elements from the assessable value which are in the nature of post-manufacturing costs. The Central Board of Excise Customs had also misdirected itself by holding that the turnover discount not uniformally available to all dealers would not be deductable. The learned counsel submitted that on the other hand, the appellants had a schedule for the grant of quantity discount depending upon value of goods purchased. All the buyers are eligible for this quantity discount on the basis of the schedule which were duly granted by the appellants uniformally. He referred to the copy of the statement showing the details of the quantity discount given dealers during the year 1977-78, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so cited and relied upon the case of Super Traders v. Collector of Central Excise -1987 (24) E.L.T. 338 of this Tribunal in this connection. The learned consultant further argued that the demand was clearly barred by limitation because there is nothing in the Show Cause Notice to allege suppression of facts by the appellants and the Board itself in this Appellate order had found no mala fides on their part and had set aside the penalty on them for this reason. 3. The learned Senior Departmental Representative adopted the reason governed by the Collector and the Board in their orders and also relied upon the case law Coromandel Fertilisers Ltd. v. Union of India reported in 1984 (17) E.L.T. 607 for the proposition that commission paid, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o deduction can be allowed on apportionment basis. It is, therefore, clear that the invoices themselves were silent in respect of the discounts and other deductions given and now claimed by the appellants. It is in this context, one has to consider the finding of the Board at the Appellate stage that during the hearing before it when some of their invoices were shown to the Board, it was stated by one of the partners that the cash discount as well as the turnover discount was allowed only to their established dealers and not to all customers and that further, since they did not intend to allow such discounts to other than their established dealers, they had not got printed the provision of uniform cash discount in their invoices, but were p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so is the case relating to the statement of commission account and the statement of Secondary packing account. Therefore, there is lack of satisfactory evidence regarding the availability of discount to the trade in which the appellants are engaged and in such a situation, the dis-allowance of this discount is well founded. As regards the value of the goods cleared for export, the value of such goods, according to the Collector s order, comes to Rs. 98,729.79. The appellant s claim is that this should be excluded while calculating the Rs. 30 lakhs exemption limit under the notification. We observe that this is a question of fact and the appellants are raising this issue for the first time before the Tribunal in a second appeal. Further, e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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