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TMI Blog2011 (3) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... ekharan, JJ. Appearance Shri Manish Mohan, SDR, for appellant Shri H.G. Dharmadhikari, Advocate For Respondent Per : M.V. Ravindran These two appeals are directed against order-in-appeal No. BPS (243)9070/2003 dated 22.8.2003. 2. The relevant facts that arise for consideration are that the assessees respondent herein are engaged in the manufacture of explosives falling under Chapter heading No. 3602.00 of the schedule to the CETA, 1985. They had cleared their product 'Solardyne 80/90' to M/s. Economics Explosives and M/s. Commercial Sales Corporation on payment of duty on the assessable value after deduction of Rs.1,000/- as trade discount and Rs.1,000/- as cash discount for one time purchase of 7-10 MT of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted Company. He would draw our attention to the provisions of Section 4(4)(c) of the Central Excise Act, 1944 during the relevant period and submit that the definition of related persons would cover the issue in favour of the Revenue as one of the partners of M/s Economic Explosives is related to the Director of the assessee Company. It is also submitted that the trade discount and cash discount which has been claimed by the assessees were passed on to only one more buyer namely M/s. Saif Explosives. It is his submission that even though the quantity is less than the specified quantity, the assessees allowed the discount during the relevant period only to create an evidence to avoid proper payment of Central Excise duty in respect of cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d various evidences as regards the value / price charged by them on other dealers. He would submit that the respondent has issued the price list for the dealers much prior to clearances which has been received by all the dealers. The said price list has declared two types of discounts i.e. trade discount of Rs.1,000/- which is qualified subject to purchase of 25 MT per month and cash discount of Rs1,000/- per MT against immediate payment. He would rely upon the CBEC Circular dated 30th June 2000 for the proposition of partnership firm and a private limited company cannot be related firms. It is also his submission that there is no mutuality of interest in the entire case. In the absence of mutuality of interest the judgement of the hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n cited by the show-cause notice nor by the adjudicating authority. But the appellants had produced the requisite evidence to show that such discount was uniformly allowed to all other buyers along with their reply to the earlier show-cause notice on the same issue, because during that period there were other buyers, who had purchased the specified quantity in a month. 20. The Additional Commissioner has observed that, since Shri Nandlal Nuwal is a Director in the Limited Company viz. M/s Solar Explosives Ltd. and also a Partner in the partnership firm viz. M/s. Economic Explosives, the limited Company and the partnership firm are to be considered as members of the Hindu Undivided Family. I do not see any substance in this averment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority that the discounts allowed to them needed to be added in the assessable value and the Central Excise duty due on it needed to be recovered from the appellants is found not tenable. In both of these appeals department could not establish the extra commercial relationship between these persons so as to prove that they were related person in terms of Section 4(4) (c) ibid. There is also no proof to show that they had financial interest in the business of each other. Therefore, the demand of duty does not sustain in both these appeals and as such the imposition of penalty under Section 11AC of the Central Excise Act, 1944 and Rule 173 Q of erstwhile Central Excise Rules, 1944 is also not warranted. In absence of the non provement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the submission that though M/s. Safe Explosives procured minimum quantity of goods but the discounts were given to them only to create a record of such sale. We find that such submission in the grounds of appeal is not supported with any evidence. As regards the trade and cash discounts were given, it was submitted that the discount is given to the wholesale dealers on the basis of the quantity lifted as per the policy. We find that the Revenue has not adduced any contrary evidence to hold that price policy of the respondent being restrictive. On this specific plea of the assessee, we note that the findings recorded by the Commissioner (Appeals) are very sound do not suffer from legal infirmity. As regards submission that the Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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