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TMI Blog1970 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... merica, which will hereinafter be referred as the " I. A. P. I. ". The contract was entered into through the agency of Panos Morosini, S. R. L. On June 10, 1953, the agent wrote to I. A. P. I. confirming the sale as per the sales terms of the Calcutta Jute Fabrics Shippers Association. The printed form of this association contained a note regarding the payment of export duty which was as follows : " Export duty based on current rates ; any alterations to be on buyers' account ". Before September 15, 1953, 6,250 tons of hessian cloth had been shipped. The export duty then payable was Rs. 275 per ton. With effect from September 15, 1953, the duty was reduced to Rs. 120 per ton. For the balance quantity of hessian cloth, namely, 3,750 tons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. The Appellate Assistant Commissioner confirmed the disallowance. The Tribunal referred to the entire evidence including the documents relating to the contract and the correspondence that passed between the assessee and the agent and came to the conclusion that at no stage during the course of the execution of the contract or thereafter the I. A. P. I. made any demand from the appellant on account of reduction in export duty. In all the bills which had been presented by the assessee to the I. A. P. I. the full amount of the sale price was charged without any reduction and the I. A. P. I. made the entire payments without any demur or protest although it was fully aware that the export duty had been reduced. The Tribunal put its conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the record for discountenancing this finding of fact and accordingly the said second set of invoices cannot go to show that the contractual liability was subsequently accepted. (4) The factum of billing for the contractual price as many as on 19 occasions after the decrease in the rate of export duty as found by the Tribunal as a fact and the total withdrawal of the same from the bank would inevitably go to show that the assessee treated the contractual price as inflexible. (5) The express terms in the contract 'export duty based on current rates ; any alterations to be on buyer's account' were finally disregarded by the assessee as will be evident from correspondence ; accordingly it cannot be said that it was holding the disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al the set of invoices charging the sale price as reduced by the amount of reduction in export duty were fictitious and were prepared only to avoid taxation. The I.A.P.I. never made any demand from the assessee on account of reduction in export duty although it was fully aware of such reduction. The assessee was, therefore, entitled under the contract to receive the entire amount of the money paid by the I.A.P.I. On these findings which were based on the materials which have been placed before the Tribunal by the parties the only conclusion possible was that the sum of Rs. 5,72,081 formed a part of the price which the assessee received for the sale of the hessian cloth. On that view no question of any liability on the part of the assessee t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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