9911796707
TMI Blog1998 (1) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. 2. The allegation made against the appellants are that during the period from 1-4-1986 to 31-3-1988, the appellants recovered service charges from their customers by way of debit notes, but they did not include the same in their invoice value/assessable value against the sale of the excisable goods. It was alleged that the so-called `service charges were recovered even before rendering services and against all supplies during the month, a consolidated debit note was issued on the last day of the month. It was stated that in case of supply made on last day of the month, service charges were charged on the same day. It was further alleged that the service charges were nothing but a mis-nomer used by the assessee company for the deferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so-called service charges were recovered even before rendering any services and for the supply made on the last day of the month, service charges were recovered on the same day and hence the service charges were nothing but a mis-nomer used by the assessee company for the deferred price of the goods. He also upheld that the charge of suppression of facts against them as they opted for invoice value for determination of levy of Central Excise duty and that the assessee company instead of recovering the service charges by raising it in invoice, issued debit notes to their customers. Therefore, they had deliberately withheld the information and never declared/informed to the department. Thus, the charges of suppression of facts stands proved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d after thorough check. They had also produced these debit notes/invoices to the Audit parties. Therefore, he stated that the demand raised by show cause notice dated 5-12-1989 is barred by time. Ld. Advocate pointed out to the copies of one such debit notes produced along with the appeal memo to show that the said invoice itself noted : Being the amount of service charges towards guarantee provided in respect of any manufacturing defects in our Weft Feelers supplied during the month of May, 1986". He also pointed out that this particular debit note is dated 31-5-1986 likewise all other debit notes had a similar endorsement. He pointed out that only in few cases the appellants had rendered service in the customers premises and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 9-8-1989. The investigation was completed only in August, 1989 and hence show cause notice in December, 1989 would not be barred by time. He submitted that the judgment of Kelvinator of India Ltd. is distinguishable as it deals with service charge while in the present case the issue involved pertains to deferred price. Ld. Advocate countering the arguments pointed out to the debit note submitted that it clearly referred to parts and not spares. He also pointed out to letter dated 1-10-1990 issued by Chhaya Sales Services who have declared that there was s oral understanding with the appellant to maintain and service the product supplied by them for a reasonable period of 12 months at nominal cost as they did not have qualified techn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants had received deferred price and not service charges; we are of the considered opinion that the evidence produced by the appellants has not been controverted by the department and the department has not proved their case that they had received deferred price and not service charges. It is noticed that the appellant had rendered only optional service with only those customers who had requested for the same. The said fact is also noted in the debit invoice, which have been relied by the department and the copies produced along with the appeal memo. The distributors and the appellants agent have also endorsed and issued the certificates to the effect that there was oral understanding with the assessee company with regard to maintenance and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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