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TMI Blog2000 (8) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... elying on the agreement to establish the trade practice; still, to rebut the argument of the appellant based on clause 14 of the agreement the respondent places reliance on clause 15 of the said agreement which, according to the respondent, creates an obligation on the respondent to compensate the buyers for the loss suffered by them due to damage to the goods. We do not want to express any opinion in regard to these arguments addressed by the parties. The authorities below have not gone into the impact of the various clauses of the agreement on the claim of the respondent as to the existence of trade practice in the wholesale market. We feel this raises primarily a question of fact and is a matter which goes to the root of the claim, therefore, it should be decided in the first instance by the original Authority. Therefore, we consider it appropriate to remand the matter back to the original Authority directing it to decide the matter afresh after giving the parties concerned an opportunity of producing such evidence as they desire to produce and after hearing the parties. We make it clear that we have not expressed any opinion with reference to the various arguments addressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of compensation paid to the buyers in lieu of damages caused to goods during transit depending on the nature and extent of damage. 2.It is against this order of the Tribunal, the Collector of Central Excise has preferred the above appeals. 3.Learned Attorney General of India appearing for the appellant contended that the Tribunal erred in placing reliance on Assam Valley and Tungbhadra Industries cases (supra) as they had no relevance whatsoever to the facts of the case in hand. He further contended that the deduction claimed being in the nature of a post-manufacturing deduction, under Section 4(4)(d)(ii) of the Central Excise Act, 1944 (hereinafter referred to as 'the Act'), the same is not deductible from the assessable value. He also contended that assuming that such post-manufacturing expenses are deductible, the assessee will have to establish that such deduction is being claimed because same is a part of the trade discounts allowed in accordance with normal practice of that wholesale trade which fact, according to learned Attorney General, the respondent has failed to establish. He also argued that the contention of the respondent that, as a matter of fact, such a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its and made their submissions based on which the original Authority gave a finding against the respondent, who took the matter in appeal before the Appellate Commissioner and having lost before the Appellate Commissioner, the respondent once again took the matter before the Tribunal. From the materials on record, we do not find any argument based on finality of the decision having been urged before the Tribunal nor the Tribunal having decided this issue on that basis. On the contrary, it seems that the Tribunal considered the issue afresh but, relying on the two decisions referred to above, once again decided to hold in favour of the respondent which decision is now under challenge before us. Therefore, on facts, finality is not the ground on which the Tribunal allowed the appeal. That apart, even in law, so far as this Court is concerned, it is not bound by the finding of the Tribunal rendered in the first instance while remanding the case to the lower authorities because this Court is now hearing an appeal against the order of the Tribunal in which the earlier order has merged. This Court in the case of Jasraj Inder Singh v. Hemraj Multanchand [(1977) 2 SCC 155] has held :- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurrence with the said observations". Therefore, it is contended that the claim of the respondent for deduction being one arising out of a post-manufacturing situation, the same is outside the purview of Section 4(4)(d)(ii) of the Act. He further contended that the claim of the respondents based on normal practice of the wholesale trade is also unacceptable in view of the agreement between the respondent and its buyers wherein at Clause 14 of the agreement it is unequivocally stated that the claim for damages in transit to the goods sold will be borne by the buyer. Therefore, according to the appellant, the respondent cannot claim any trade practice in regard to reimbursement of any value of the goods which have suffered damage in view of Clause 14 of the said agreement. He further contended that the affidavits of the buyers filed by the respondents which are contrary to the terms of the agreement are neither admissible nor can be relied upon. 7.Shri Anil Divan, per contra, contends that the deductions contemplated under Section 4(4)(d)(ii) of the Act are not confined only to deductions that could be attributable to a stage prior to the removal of the goods from the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained that the nature and extent of damage on different pieces of their products was not uniform and hence the price reduction for the damaged goods could not be uniform. They had allowed varying discount/reduction depending upon the nature and extent of the damage in each case and they prayed that the discount/reduction so actually allowed from case to case may be accepted after necessary verification by the authorities. The learned representative of the department had no comments to make. We find the appellants' request quite fair and reasonable, and allow it." 9.From a perusal of this part of the order, we are unable to deduce any principle either in law or in facts decided by the Tribunal so as to make it applicable to the issue that arose before it in the case with which we are concerned. None of the questions which are addressed before us or decisions cited have been considered by the Tribunal in the said order in Assam Valley case. After carefully considering the said order, we are unable to agree with the Tribunal that those cases either wholly or in part cover the issue involved in the present case. 10.While in the case of Tungbhadra Industries case (supra), the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem due to damage to the goods. We do not want to express any opinion in regard to these arguments addressed by the parties. The authorities below have not gone into the impact of the various clauses of the agreement on the claim of the respondent as to the existence of trade practice in the wholesale market. We feel this raises primarily a question of fact and is a matter which goes to the root of the claim, therefore, it should be decided in the first instance by the original Authority. 13.Therefore, we consider it appropriate to remand the matter back to the original Authority directing it to decide the matter afresh after giving the parties concerned an opportunity of producing such evidence as they desire to produce and after hearing the parties. We make it clear that we have not expressed any opinion with reference to the various arguments addressed before us and referred to in this order of ours except to the extent of the finding delivered by us in regard to the finality of the decision rendered by the Tribunal in the earlier round of proceedings and in regard to the correctness of the reliance placed by the Tribunal on the two orders of its own while allowing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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