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TMI Blog2000 (1) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... atements have to be allowed from 01-07-1995 onwards i.e. the date of recourse to provisional assessment. 3. Heard Shri C. Chidambaram, ld. Consultant appearing for appellants in this appeal and ld. DR., Shri M. Kunhi Kannan for Revenue. 4. Ld. Consultant submits that the issue at (A) above is already covered by a decision of the East Zonal Bench of the Tribunal in the case of Assam Asbestos Ltd v. CCE as in 1997 (96) E.L.T. 101 (T) wherein it was held that because there is no specific provision existing for reducing the cost of transportation on account of reciept of subsidy from the Government, and since the cost of transportation otherwise is not disputed, therefore same is deductible from the assessable value. He submits that in this case similar subsidy is given by the Government of Sikkim on the equalised freight involved in some of these goods. Therefore, the ratio of the aforesaid decision is clearly applicable to the facts of this case and hence the issue needs to be decided in their favour. 5. Ld. DR on the other hand submits that since appellants received certain sums as subsidy, therefore these additional considerations flowing back to them need to be deducted from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly held them as not available. 10. We have carefully considered these rival submissions as well as records of this case. As far as the question of deductibility of the subsidy given by the Sikkim Government on freight from the assessable value is concerned, we find that the issue has already been decided by the Tribunal in the case of Assam Asbestos Ltd. (supra). In that case, the Tribunal had considered where such a subsidy provided by the Central Govt. for factories which were situated in North Eastern Region of the country as an incentive for the manufacturers located at that place but the decision was based on the legal premise that since there was no specific provision existing in law for reduction of cost of transportation on account of receipt of such subsidies, therefore their abatement could not be disallowed. In the present case, the subsidy is granted by the State Govt. of Sikkim but is granted to all goods which are sold by the units set-up in the State of Sikkim. This is to promote industrialisation of Sikkim State which is located in remote location of the country having less infrastructural facilities etc., than the more highly industrialised belts of the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitles the claim of the appellants on such abatements, therefore we cannot be a party to disallowing these abatements on the mere technicality that they were not claimed on the price list. These abatements were known to the department because that was the reason why the department had resorted to provisional assessment and that was the reason why the present show cause notice had been issued proposing to deny the said abatements . Therefore, we find great merit in the contention of the ld. Consultant that all the admissible abatements would have to be allowed from 1-7-1985 onwards which was the date on which the department took recourse to provisional assessment which were sought to be finalised by the Order-in-OriginaI leading to the Order-in-Appeal impugned before us. 13. In view of the aforesaid findings, the Order-in-Appeal impugned stands modified to this extent and appeal of the appellants on the above three grounds succeeds with consequential relief as per law. 14. With respect to Revenue appeal No. E/V-2035/98, ld. DR. submits that Revenue is aggrieved with the same order-in-appeal as mentioned above on the following grounds:- (1) The Cost of Packing for Transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Industrial Syndicate Ltd., on this issue. The Hon'ble Apex Court has laid down that the true test to decide the exclusion or inclusion of such a packing would be in terms of Hon'ble Apex Court's decision in the case of CCE v. Pond s India Ltd. as in 1989 (44) E.L.T. 185 (S.C.). The Hon'ble Apex Court had also observed that this was in line with the terms considered by the Hon'ble Supreme Court in the case of GOI v. MRF Ltd., as in 1995 (77) ELT 433 (SC). The net result of this decision, ld. Consulant submits, is that the test to be applied in this case would be whether this packing is one in which it is ordinarily sold in the course of wholesale trade to wholesale buyer at the factory gate and if it is not, then the cost of such packing has to be excluded . 16. On a query from the Bench, the ld. Consultant fairly concedes that the onus of establishing their case in this regard would lie on the manufacturer as has bean noted by the Hon'ble Supreme Court in para-7 of the judgment of the Geep Industrial Syndicate Ltd., (supra). Ld. Consultant submits that this burden has already been discharged by them before the lower authorities by filing affidavits of recipient dealers to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formly to all dealers who qualified under the scheme and not only was the scheme announced to all in advance but was also mentioned on the body of the inovices themselves. Therefore, it has satisfied all the conditions of trade discount namely that it should be known before hand; that it should not be discriminatory , and that it was even mentioned on the invoices. Hence it should be allowed as deduction in the form of trade discount in kind instead of cash which issue has already been considered by the Tribunal in the decision of the Queens Chemists Manufacturing Department v. CCE as reported in 1979 (4) E.L.T. (J 454) (para-10). 20. With respect to scheme after invoices, ld. Consultant submits that one aspect of this scheme was to reimburse or replace with the same number of pieces to recipient dealer as was reported by him to be damaged in transit. He submits that the deductibility of this from the assessable value is already considered by the Tribunal in their own case vide final order No. 1715/97A, dated 12-8-1997 as well as by final order No. C-II/1952-1959/99-WRB, dated 6-8-1999 [1999 (113) E.L.T. 650 (Tribunal)] in the case of Hindustan Lever Ltd., v. CCE. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is clearly with the assessee/respondents. The cost of this outer master carton are therefore deductible from the assessable value. 24. With respect to the question of Consumer Offer , i.e. the gifts of single piece of eye brow pencil, shampoo, small soap etc., given free after being bought out, out of duty paid stock, since the issue has already been decided by the Tribunal in the case of Hindustan Lever Ltd. (supra) as well as vide final order No. 1527/97, dated 19-5-1997 and there is no dispute that the facts in this case are identical, therefore, respectfully applying the ratio thereof, we allow this as admissible deduction from the assessable value and therefore reject the contention of the Revenue in this behalf. 25. With respect to collection/bank charges also, we respectfully apply the ratio contained in Final Order Nos. 842 to 844/96, dated 28-2-1996 of the Tribunal and find that facts are exactly identical to the one considered therein, therefore the said charges are deductible from the assessable value and to that effect the grounds of appeal of Revenue is rejected. 26. With respect to the scheme on invoices regarding the delivery of free units of excisable produ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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