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TMI Blog2012 (11) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided only after examining the issue in depth - appellant directed to make a pre-deposit of 50% of duty. - E/232-235/2010 - S/934-937/2011-WZB/C-II(EB) - Dated:- 1-12-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri Prakash Shah, Advocate, for the Appellant. Shri Y.K. Agarwal, Addl. Commissioner, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. - These appeals are directed against order-in-appeal No. SB/86-89/TH-II/09, dated 13-11-2009 passed by the Commissioner of Central Excise (Appeals), Mumbai-I. The stay applications are taken up for consideration. 2. The appellant Mercury Pnuematics P. Ltd. are manufacturers of goods falling under Chapter 84 of the Schedule to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly four show-cause notices were issued proposing to demand excise duty on the discounts allowed to the sales agents and the same were adjudicated and confirmed by including the discount in the assessable value of the goods. The appellants preferred four appeals against the said orders and vide the impugned order all these appeals were rejected. Hence the appellant is before us. 3. The ld. Advocate for the appellant submits that they are providing discounts varying from 5% to 15% to the various customers in the course of trade. These discounts are granted while negotiating the purchase/sale of the goods and the same are reflected in the invoices issued to the customers. The department has not disputed these discounts and has accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete waiver of the pre-deposit of the dues adjudged should be granted in the instant case. He also relies on the judgment of this Tribunal in Confident Dental Equipments Ltd. - 2009 (248) E.L.T. 868 wherein it was held that if the dealer gives a free service during the warranty period on his own account, the cost of such service can not be added to the transaction value. 4. The ld. AR appearing for the revenue, on the other hand, relies on the judgment of the Hon ble Apex Court in the case of Snow White Industrial Corpn. - 1989 (41) E.L.T. 360 (S.C.) wherein distinction has been made by the Hon ble Apex Court between a sales agent and an independent buyer. In the said case it was held that whether there was an agreement for sale or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normally involves 2-3 visits, (ii) following up with the appellant for timely delivery, (iii) following up with customers for order amendments whenever required, (iv) collecting payments on behalf of the appellant and remitting the same to the appellant and (v) providing after sales service whenever requested by the customer. The above position is also confirmed from the statements of Mr. Ravishankar Bhagwat, proprietor of Dew Tech and Mr. Paul D Souza, Accounts Manager of the appellant firm. From these admissions, it is clear that the sale associates/agents are performing certain post clearance services to and on behalf of the appellant manufacturer and it is for this reason that they are getting a higher discount of 20% as against the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maruti Suzuki India Ltd., 2010 (257) E.L.T. 226 held that the definition of transaction value includes in its scope, all payments made by the buyer to the seller by reason of or in connection with the sale and the definition of the term transaction value does not disclose that the elements to be included in the assessable value would depend upon the flow back of the consideration to the assessee. Even indirect benefit in that regard, wholly or partly resulting from the payment made by the buyer to the dealer in connection with or by reason of the sale transaction will have to be included in the assessable value. It is also pertinent to note that while passing the judgment in the Maruti Suzuki case, the Larger Bench had considered the judg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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