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TMI Blog1996 (12) TMI 366X X X X Extracts X X X X X X X X Extracts X X X X ..... red to as the Board ) by which the judgment dated March 31, 1992 in Appeal No. 620/RST/JPA/DC-3/91-92 of the Deputy Commissioner (Appeals)-III partially accepting the appeal of the present respondent against assessment order dated October 29, 1991 by which the petitioner had ordered for the forfeiture of the amount of tax collected by the respondent on the component of discount and ordering instead for its realisation with interest and thereafter for its refund was set aside. 2.. The relevant facts are that the respondent (assessee-firm) gives to its customers (dealers) an annual turnover discount (ATOD). At the time of sale to them the assessee recovers the full amount of tax on the undiscounted, i.e., full, price of the goods. Thereaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Sales Tax (Law) v. Motor Industries Co. [1983] 53 STC 48 (SC). This point is not in controversy before us. 5.. However, thereafter, the AA held that Rs. 16,053 provisionally refunded by the assessee to its dealers had therefore been unlawfully collected in the first place and ordered for its forfeiture and imposed a penalty of Rs. 2,000 under section 16(1)(j), RST Act. It is this aspect of the matter which is in controversy before us. 6.. The Deputy Commissioner (Appeals) by his order of March 31, 1992 set aside the AA s orders of forfeiture and of imposition of penalty and instead declared that the amount of Rs. 16,053 was liable to be recovered as tax due from the assessee with interest for the month of March, 1989 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice makes it abundantly clear that any sum allowed as cash discount according, to the practice normally prevailing in the trade is to be deducted from the sale price. 10.1. In the facts and circumstances of this case the modalities of the working out of the discount were such so as to necessitate an ex post facto adjustment as the discount was not extended in the first eleven months of the year when the full price and tax payable was recovered and deposited. It was only in the twelfth month that the discount became available and as the discount was not exigible to tax a refund of tax by the assessee to its dealers became inevitable. 10.2. The provisions of section 16(1)(j) and (n), RST Act reproduced below were not attracted as at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of such amount or any part thereof can be claimed only by the person from whom such person or dealer had actually realised such amount whether by way of tax or otherwise and the period of limitation provided in the proviso to sub-section (1) of section 23, shall apply to the aforesaid claims: Provided that if the first purchaser of goods has passed on the incidence of tax to the next dealer or person or he has utilised the goods in the manufacture of other goods for sale or in the execution of works contract and has passed on the incidence of tax to the next dealer or person in any form then a refund of such amount or any part thereof can be claimed only by the person or dealer who has actually suffered the incidence of tax: Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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