9911796707
TMI Blog1998 (5) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to two aspects, covered by the order, namely, direction by the Collector to the Assistant Collector to work out the short levy for the period of six months prior to the date of the show cause notice and a similar direction for future assessments. By Final Order No. 109/97-A, the Tribunal set aside both these directions and allowed the appeal. At that time neither side brought to our notice the fact that the Collector of Central Excise, Pune has filed an appeal against the same. Shri Joseph Vellapally, learned Counsel states that the assessee was not aware of filing of the appeal by the Department and for the first time the assessee became aware of the present appeal only when notice of hearing of the appeal was received subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the buyers. The differential assessable value was purportedly arrived at on this basis. According to the learned Counsel for the respondent the show cause notice took into consideration all the clearances to area sales officers and arrived at the assessable value without deducting any amount towards trade discount. It is pointed out that the respondent was giving varying trade discounts, either 10% or less than 10% or more than 10% and refusal to give deduction for trade discount actually disbursed to buyers would be illegal. Shri K. Srivastava, SDR submitted that he is not in a position to verify whether the clearances referred to in the show cause notice relate to all the clearances effected to area sales officers or only to that part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that time respondent was offering varying trade discounts to wholesale dealers, either 10% or less than 10% or more than 10% and instead of going by the actuals which would involve scrutiny and verification of thousands of invoices and other documents, the Assistant Collector adopted the strategy of arriving at an average trade discount for the purpose of deduction and quantified it as 10%. It is stated that even though this was against the interest of the assessee, inasmuch as the actuals would be above this average, the respondent accepted the order passed by the Assistant Collector to avoid all difficulties and complications. According to the respondent, if deduction is given on the basis of actuals, during the period under considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Collector and in this view, it cannot be said that the respondent was guilty of deliberate suppression of facts or had intent to evade duty. Regarding the charge of failure to produce data in support of the order dated 11-7-1978 passed by the Assistant Collector the learned Counsel for the respondent pointed out that the demand for data came long after 1978 and records were not available. To a query put by us, learned Counsel clarified that the invoices for the period covered by the show cause notice are not available with the assessee since they relate to a very old period. Since the respondent was acting not on his own but as per specific direction given by the Assistant Collector in his order dated 11-7-1978, it must be held that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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