9911796707
TMI Blog2014 (12) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... discounts is concerned is correct. Neither in the order passed by the Assistant Commissioner nor in the order passed by the Commissioner (Appeals), any refund arising out of finalization of the provisional assessment has been sanctioned. In terms of sub-rule (6) of Rule 7 of the Central Excise Rules, if finalization of provisional assessment results in some amount becoming refundable, this refund would be subject to the principles of unjust enrichment and it will be payable to the assessee only if the incidence of the excise duty whose refund is sought, has not been passed on, to any other person. Thus, the finalization of the provisional assessment and grant of refund, if any, arising on account of finalization of provisional assessment, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depots and branches at a fixed cum-duty selling price. However, they give various discounts to their customers like prompt payment cash discount, additional trade discount, trade incentive, turnover discounts, etc., to their dealers. These discounts are calculated and paid to the dealers/customers by credit notes issued to their dealers/consignment agents. As a result of this practice, the respondent were paying duty at the factory gate on a higher assessable value while clearing the goods to their depots/consignment agent s premises, as at that time, the quantum of permissible deduction was not known. For this reason, the respondent vide their letter dated 30-3-11 addressed to the Assistant Commissioner requested for provisional assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have received the full amount of invoice value of the goods including the duty on that value at the time of clearances they are not entitled to any deductions. The Commissioner (Appeals), however, vide order-in-appeal dated 30th April, 2013 rejected the Revenue s appeal. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 3. Though this matter today was listed for hearing of the stay application, after hearing this appeal for sometime, the Bench of the view that the appeal heard for final disposal. Accordingly, with the consent of both the sides, the requirement of pre-deposit is waived and the appeal was heard for final disposal. 4. Ms. Suchitra Sharma, the learned Jt. CDR, assa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleaded that the Assistant Commissioner vide his order dated 17-12-12 had only finalized the assessments by permitting deduction of certain discounts and certain taxes and, as such, in this order no refund payment has been ordered to the respondent, that it is this order, which has been upheld by the Commissioner (Appeals), that the deduction of turnover discount even if determined after the clearance is admissible in view of judgments of the Tribunal in the case of Hindalco Industries v. CCE reported in 2009 (240) E.L.T. 693 (Tri.-Mum.), CCE v. Visakha Industries Ltd. reported in 2009 (248) E.L.T. 865 (Tri.-Bang.) and CCE v. Goetze (India) Ltd. reported in 2005 (186) E.L.T. 229 (Tri.) and that in view of this, there is no infirmity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of CCE v. Goetze (India) Ltd. (supra). In fact the Apex Court in the case of Madras Rubber Factory - 1995 (77) E.L.T. 433 (S.C.) has held that deduction of turnover discount is admissible even if such discounts are not given in the invoice, but are subsequently paid to the buyers by issuing credit notes for the equivalent amounts. Thus, the impugned order in so far as upholding the deductions of these discounts is concerned is correct. Neither in the order passed by the Assistant Commissioner nor in the order passed by the Commissioner (Appeals), any refund arising out of finalization of the provisional assessment has been sanctioned. In terms of sub-rule (6) of Rule 7 of the Central Excise Rules, if finalization of provisional assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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