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TMI Blog2010 (9) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... were cleared on credit. - claim of cash discount rejected. - E/1202-1204/2005 , E/902/2008 - 1285-1288/2010 - Dated:- 7-9-2010 - Justice R.M.S. Khandeparkar, Shri P. Karthikeyan, JJ. REPRESENTED BY : Shri Rajesh Chander Kumar, Advocate, for the Appellant. Shri D.P. Nagendra Kumar, JCDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Since common questions of law and facts arise in all these appeals, they were heard together and are being disposed off by this common order. 2. As far as Appeal No. 1203/2005 is concerned, it is in relation to the classification of product, whereas the other three appeals relate to the valuation aspect. The appeal No. 1203/2005 pertains to period from October, 1991 to February, 1994, the Appeal No. 1202/2005 pertains to period from July 1994 to September, 1995, the Appeal No. 1204/2005 relates to March, 1994 to June, 1994 and the Appeal No. 902/2008 relates to July 1994 to September, 1995. The valuation aspect pertains to the claim of cash discount on the packing materials. The classification dispute relates to (i) yarn made out of 100% Polyester waste; (ii) yarn made out of Acrylic Staple Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 289 (S.C.) and the Order of the Tribunal in appellant s own matter in appeal No. E/251 and 521 of 2005 delivered on 16th May, 2006 vide Final Order No. 416/2006 and Misc. Order No. 259/2006 dated 16-5-2006, the learned Advocate for the appellants submitted that the rejection of the said claim on the ground that there was no material on record about the returnability and durability of the packing material is totally contrary to the law laid down by the Apex Court and more particularly, in view of the fact that the invoices issued by the appellants clearly cast obligation upon the consignees to refund the cost of the packing material if the same is returned by the customer. 6. As regards the claim regarding the cash deductions, attention was drawn to the invoices, which disclose reference to the cash deduction as well as those invoices, which specifically disclose absence of any such deduction being made while contending that it was the policy of the appellants to grant such deductions in case of sale for cash payment while to add the similar amount to the price in case of sale on credit. In that regard, attention was drawn to the order passed in appellant s own case in Order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n held to be classifiable under CH 55.05, considering the decision of the Tribunal in Priyadarshini Spg. Mills (supra) case, the appellants are entitled for the benefit of exemption notification. 9. The Departmental Representative, on the other hand, has also fairly submitted that in view of the decision of the Apex Court in Triveni Glass case (supra), it is difficult to support the impugned order as far as it relates to denial of benefit of deduction in relation to permanent packing material is concerned. However, according to him, there is no case for interference as far as rejection of the claim pertaining to cash discount, as there is no sufficient material placed on record in support of the said claim. Neither the price policy as sought to be claimed was produced on record nor any material on record lending support to the contentions sought to be canvassed in relation to these aspects of the matter was placed. He has also fairly submitted that the order passed by the lower authority does not relate to the aspect relating to the claim of exemption benefit. He has however, submitted that the matter in relation thereto will have to be decided primarily by the Adjudicating Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to claim deduction on the cost of such packing material from the assessable value. 12. As far as the claim regarding the cash discount is concerned, though it is permitted as cash discount, in reality, it is cash in excess over and above the price of the product. In cases where the goods are cleared for payment on credit, undisputedly, in none of the cases in hand, apart from invoices referring to the terminology cash discount , no other material was placed on record to show that the amount so claimed as cash discount was in fact a cash discount from the price of the goods cleared on cash payment. Undoubtedly, the invoices issued in relation to the goods cleared on cash payment did not disclose any amount towards the cash discount. That by itself cannot lead to conclusion that there was cash discount in relation to the goods cleared on cash payment. Rather, the records disclose that in relation to the goods cleared on credit, there was excess amount collected on account of the fact that the goods were cleared on credit. In our considered opinion, this by itself cannot lead to the conclusion that the same to be termed as cash discount. To the specific query with the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) in the said order. Besides, when the matter came up before the Tribunal in Appeals No. 251 and 521/2005, there was no challenge to the said finding by the Commissioner (Appeals), and therefore, the Tribunal had no occasion to deal with the said issue. Being so, the said decision can be of no help to the appellants in the matter in hand. 17. For the reasons stated above, therefore, as far as the issue in relation to the claim of cash discount is concerned, the same is to be rejected as it does not relate to the cash discount but to the claim is referred to the amount collected in excess of the price. 18. As far as the claim relating to the deduction pertaining to the durable packing material is concerned, the same needs to be allowed. 19. As far as the claim of classification is concerned, the same is to be rejected while holding that the products are classifiable under 5505.00. It is also to be held that the authorities will have to consider the claim of the appellants regarding the exemption benefit under the said Notification. 20. With the above observations, the orders passed by the lower authorities, accordingly stand modified with further direction to the Adju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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