9911796707
TMI Blog1994 (3) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... ofits in respect of the product. The Excise Authorities issued show cause notice upon the Company to explain why the abatement of post-manufacturing expenses claimed in the price lists should not be disallowed. The Company filed reply and the Assistant Collector of Central Excise by order dated January 22, 1982 held that the post-manufacturing expenses and selling profits cannot be excluded. The Company carried an appeal before the Collector of Central Excise and an application was filed for stay of recovery of differential duty. The said application was turned down by the Collector of Appeals and that gave rise to the filing of this petition under Article 226 of the Constitution. The petition was admitted and the petitioners were permitted to clear the goods on the basis of the price lists produced. 2. After the decision of the Supreme Court in Bombay Tyres International Ltd., the petition was placed for hearing before one of us (Pendse, J.) and the assessing authorities were directed to permit the petitioners to submit the statement of deductions in respect of price lists already filed for proper determination of excise duty liability. The Excise Authorities were directed to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not giving deductions on this count. It is not possible to accede to the submission of the learned counsel. The Assistant Collector points out that from the very nature of the discount claimed, it is evident that the same cannot be ascertained at or prior to removal of the goods in accordance with the decision of the Supreme Court in Bombay Tyres International Ltd. The Assistant Collector further points out that the petitioners failed to produce any evidence to sustain the claim that such discounts are granted. Shri Shroff very rightly did not dispute that such discounts are allowed only by agreement or in terms of sale or by established practice and which is required to be substantiated by the petitioners. The Assistant Collector points out that during the personal hearing, the petitioners were specifically asked to produce the evidence in support of the claim and the petitioners failed to do so. Shri Shroff submitted that it is undoubtedly true that the petitioners failed to produce evidence but made two-fold request. It was claimed that a fresh opportunity should be given to the petitioners by remitting the matter back to the Assistant Collector to enable the petitioners to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Supreme Court, the present petition was kept pending and the petitioners were given opportunity to challenge the order of the Assistant Collector in the present petition to avoid multiplicity of litigation. In these circumstances, it is futile to claim that the petitioners should be given another chance to lead evidence. It is also necessary to mention that the claim on this count made by M/s. Asian Paints (India) Ltd. was also subsequently turned down by the Collector of Appeals. In our judgment, the refusal to grant discount under this heading by the Assistant Collector cannot be faulted. 4. The second claim for deduction made by the petitioners is in respect of cash discount. The Assistant Collector allowed the discount at 5% when in fact it has been given. Shri Shroff submitted that cash discount of 5% should be given across the board i.e. even where it has not been availed of. The Assistant Collector did not accept the contention and in our judgment very correctly. The refusal to give cash discount in respect of all sales regardless of whether the discount is availed of or not cannot be faulted. The third head of discount claimed by the petitioners is in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be accepted because the actual quantum of bonus payable even assuming that there is such circular, could not be ascertained at the time of removal. Shri Shroff submitted that while completing the proceedings in respect of the claim made by M/s. Asian Paints (India) Ltd., the Collector of Appeals disallowed the deduction on the ground that the right to give discount is at the discretion of the Company and it is not possible to ascertain whether dealer is entitled to such discount. Shri Shroff submitted that the conclusion is not correct but we are not able to accept the contention. The discount claimed under the heading `town commission/overriding commission' also suffers from the same infirmity. In regard to the claim under the heading `special deal and special discount' again the same infirmity is noted by the Assistant Collector because the petitioners failed to produce any evidence. The claim under this heading was also turned down by the Collector of Appeals in the case of M/s. Asian Paints (India) Ltd. As mentioned hereinabove, Shri Shroff did not press claim of discount under the heading `agency commission'. 6. The last claim for discount is under the heading `transit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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