9911796707
TMI Blog2009 (3) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded against the appellants for disallowance of the dealers discount. In view of this, with effect from 22-1-1996, the appellants started paying duty on the value including trade discount under protest. The matter was remanded to the Assistant Commissioner for de novo consideration directing him to satisfy that the dealers discount was known prior to removal by way of circulars. In the de novo order passed in Order No. 31/2003 dated 25-4-2003, the Deputy Commissioner in Para 12 has allowed the deduction of dealers discount from assessable value. In the said order, the show cause notices disallowed the dealers discount. The dealers discounts were dropped on consequential relief to the assessee. 4. The learned advocate invited our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted on the ground that quantification could not be arrived in the absence of evidence. That be apart, since the appellant issued credit notes, the claim is hit by bar of unjust enrichment. The appellants filed an appeal before Commissioner (A) relying on various case-laws decided by Courts and Tribunals. The Order-in-Appeal has been passed without discussing the points raised by the appellants. The appellant s refund claim was dealt with by the Original Authority in his Order No. 42/2004 dated 20-9-2004. The Deputy Commissioner has written a very detailed order and he has rejected the same on the following grounds as mentioned in Para 11.8 of his order. The said para is reproduced below. 11.8 From the foregoing, I hold that the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een paid and held that dealers discount is to be taken into account for arriving at the assessable value. In the subsequent proceedings for refund, he cannot say that there is no material before him for quantification of refund. This is a clear case of approbation and reprobation. Moreover, the Deputy Commissioner in his Order-in-Original No. 31/2003 has allowed the deduction of dealers discount and has dropped further proceedings with consequential relief. This being the fact, the very same Deputy Commissioner could not have rejected the refund application, since the same fell within the category of consequential relief. As such the Order-in-Original has been passed without application of mind and has to be set aside on this ground alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er No. 31/2003 dated 25-4-2003 clearly dropped the proceedings against the appellants in respect of the show cause notice issued for denying deduction on account of dealers discount. In fact in Para 15 of the above-mentioned order, there is a very clear finding that during the period from 22-1-1996 to 7-11-1996 the assessee paid duty by including the dealers discount under protest. It is also clearly stated that the duty on the dealers discount during the period is Rs. 22,34,969/-. Further on 29-2-1996, the appellant paid an amount of Rs. 4,22,385/-. Thus, the total amount due to the appellants comes to Rs. 26,55,354/-. After giving a clear finding in the Order-in-Original No. 31/2003 and in a subsequent proceeding, the same Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... galore factory. We certify that the total CTV discount passed on to the dealers on various CTS models manufactured and sold during 22-1-96 to 8-11-96 are as per the Annexure A enclosed and detailed given below. On going through the records, it has been ascertained that the duty amounting to Rs. 22,34,969/- paid under protest and an amount of Rs. 4,20,385/- paid under protest in RG23A Part II have not been passed on to the dealers and the company have taken the same into their working capital and profits. Sr. No. Name of Branch CTV Sold in Nos. Discount Passed on to dealers on sales Invoices and through Credit Notes 1 Bangalore 11242 12389925 2 Cochin 267 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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