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TMI Blog1996 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 12% to the dealers whereas in the case of special types of electrodes classifiable under T.I. 68, they opted for invoice value assessment as per Notifiction No. 120/75. In the invoices, they were claiming discount of 12% as was available to other buyers of welding electrodes classifiable under T.I. 50, over and above that they also claimed discount of 23% in respect of clearance effected to Cosmics, in terms of two agreements both entered into on 11.1.1979. As per the first agreement 12% as is available to other buyers is extended. However, as per the second agreement 23% discount is extended on the following considerations : (i) Cosmics shall market the Fan products of the company and promote the sales of the said products. (ii) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices. The department feeling aggrieved from the order passed by the Assistant Collector holding the issue in favour of the appellants on the ground of time bar filed an appeal before the Collector (Appeals). The appellants were not satisfied with the order of the Assistant Collector holding the issue against them on merits and hence they challenged the same before the Collector (Appeals). The Collector (Appeals) in the impugned order held that in the RT 12 Returns short levy has been pointed out which were not challenged in appeal before the Collector (Appeals) and hence they acquired finality and there was therefore no need for review. The appeals in question both by the appellants as well as the department therefore stood disposed of ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20/75. 4. On the ground of sustainability of the show cause notice, where it traverses beyond a period of six months we are in agreement with the argument of the ld. Advocate that endorsement made on the RT 12 (Returns) cannot be construed to be valid show cause notices for the purpose of recovery of duty. This position has been made clear by the Supreme Court in the case of Kosan Metal Products - 1988 (38) E.L.T. 573 (SC). However, Ms. Bharati Chavan, the ld. JDR pleads that the assessment order made in the RT 12 Returns should have been appealed against. Hence it has acquired finality. 5. Be that as it may. The assessment order should have been followed by a proper show cause notice before confirming any demand under Section 11A. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like advertisements, maintenance of godown, paying the staff for the godown. It has been held by the Supreme Court in the case of Union of India v. MRF reported in 1995 (77) E.L.T. 433 (SC) that such expenses are not excludible from the assessable value. In this case instead of the assessee performing these functions which would enrich the value of the product when these expenses are includable in the value, they have chosen to appoint a person for performing this function and passing on the expenses, which would have been otherwise borrowed by them in the form of discount. This is clearly evident on a reading of the agreement and also from the plea made by the ld. Advocate. He pleaded before us that there was no difficulty for them in mar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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