9911796707
TMI Blog1993 (6) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... livered setting out the scope and ambit of Section 4 of the Central Excises and Salt Act. The decision of the Supreme Court prescribes what deductions are permissible from the normal price to determine the assessable value. After the decision of the Supreme Court, the petition was placed before one of us (Pendse, J.) and by order dated December 9, 1983, the proceedings were remitted back to the Assistant Collector with a direction to reconsider the matter in the light of the decision of the Supreme Court. The petitioners were permitted to file revised price list for proper determination of excise duty liability in respect of the claim of deductions. The Company was desirous of seeking deductions in respect of (a) transportation cost, (b) tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost of transport of return of bottles and crates cannot be permitted. Mrs. Mody, learned counsel appearing on behalf of the Company, submitted that the decision of the Assistant Collector in respect of transport cost for the return of empty bottles cannot be sustained in view of the decision of the Supreme Court reported in 1988 (36) E.L.T. 723 (Indian Oxygen Ltd. v. Collector of Central Excise). The learned Counsel also referred to an unreported decision dated March 18, 1993 delivered by Division Bench of this Court in Writ Petition No. 265 of 1981 (Rogers & Co. Pvt. Ltd. and Another v. The Union of India & Others). The Division Bench after considering the ratio laid down by the Supreme Court held that the assessee will be entitled to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not certain at the time of clearance from the factory gate. The Assistant Collector felt that the rebate is not in the nature of discount but is in the nature of incentive and granted after the invoices are raised and the removal of the goods was complete. Mrs. Mody submits and, in our judgment, with considerable merit that the Assistant Collector has failed to properly examine the claim made by the Company. The learned Counsel urged that the Company has presented a specific case before the Assistant Collector that the rebate is granted for a period of over 30 years and the percentage of trade discount is fixed and the vouchers and ledger accounts are maintained in respect of grant of rebate. Mrs. Mody submitted that it is well-settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the sales. The Assistant Collector turned down the contention by holding that the claim made in respect of sales promotion and the decision of the Supreme Court in Bombay Tyre International specifically provides that such expenses cannot be deducted but are to be included. Mrs. Mody submitted that the Company will be able to produce evidence to establish that 2½% of net sale value was paid towards distributors expenses for return of bottles and crates. We enquired from the learned counsel as to whether any agreement is entered into with distributors providing for this kind of payment and the reply was that there is no agreement with the distributors. In these circumstances, we are unable to accede to the submission of the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the Assistant Collector is not required to be disturbed. , 7. Accordingly, petition is partly allowed and the order dated November 25, 1989 passed by Assistant Collector, Central Excise, Division 'I', Bombay is partly set aside and the proceedings are remitted back to the Assistant Collector to determine afresh the claim of the petitioners in respect of trade discount (rebate on cash sales). The Assistant Collector will finalise the price list after allowing the transport cost for the return of empty bottles and determine in the light of the judgment as to whether the Company is entitled to trade discount. Rest of the findings recorded by the Assistant Collector are not disturbed. In the circumstances of the case, there will be no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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