9911796707
TMI Blog2005 (3) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has not shown the justification for wide variation within the same region. For example, in region where transactions are substantial i.e. Delhi the variation is between 546 and 1523. Similar is the position in Ahmedabad Zone where the variation is between 414 and 1541. In Madras Zone it varies between 52 to 368. No reason was indicated as to why the named persons were chosen. Even though it is open to the assessee to chose the persons, it cannot be left to its ipse dixit. No rational basis for selecting the persons was established. On considering the relevant factors, the authorities and CEGAT have recorded finding of fact that no rational basis has been established. Appeal dismissed. - 6938 of 1999 - - - Dated:- 7-3-2005 - Ruma Pal, Arijit Pasayat and C.K. Thakker, JJ. [Judgment per : Arijit Pasayat, J.]. - Appellant calls in question legality of the judgment rendered by the West Regional Bench at Mumbai of the Customs, Excise and Gold (Control) Appellate Tribunal (in short the 'CEGAT'). 2.The factual position giving rise to the controversy is as follows : The appellant (also described as 'assessee') had filed a price list in Part I of the Format presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration existed so far as the present appellant is concerned. That being so, the presumption is that the price fixed was rational and the Collector (Appeals) had rightly decided in favour of the appellant. The beneficiaries were clearly identifiable. The names of the persons belonging to different regions were noted. Taking into account the previous periods' turnover, the price concession was given. The authorities were clearly in error by observing that classifications cannot be made on regional basis. The comparison of the sales figures has been made by the authorities and CEGAT by taking all the regions together and not inter-zones. Merely because no minimum number of sales was indicated while deciding the persons to whom concession is to be given, that does not per se make the claim irrational. Reliance was placed on Metal Box India Ltd. v. Collector of Central Excise, Madras [1995 (2) SCC 90] to submit that even a single individual whose transactions were considerable can constitute a class for granting discount. As discount was not based on any extra commercial consideration it was deductible in terms of Section 4(1)(a) (proviso) (i) of the Act. Reference was also made to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale : Provided that - where, in accordance with the normal(i) practice of the wholesale trade in such goods, such goods are sold by the assessee at different prices of different classes of buyers (not being related persons) each such price shall, subject to the existence of the other circumstances specified in Clause (a), be deemed to be the normal price of such in relation to each such class of buyers." 9.The expression "wholesale dealer" is defined in Section 2(k). Section 4(4)(e) defines "wholesale trade" and the same reads as under : "Wholesale trade" means sales to dealers, industrial consumers, Government, local authorities and other buyers, who or which purchase their requirements otherwise than in retail." 10.In order to get benefit of Section 4(1)(a) (proviso)(i) the assessee has to establish that discount claimed was in accordance with the normal practice of wholesale trade in the concerned goods sold to different classes of buyers, and it shall be subject to the existence of other circumstances specified in Clause (a). Such circumstances are : (a) Charging of normal price at which such goods are ordinarily sold; (b) sale must be to a buyer in the course of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -region and not by taking all regions together. But even then the appellant has not shown the justification for wide variation within the same region. For example, in region where transactions are substantial i.e. Delhi the variation is between 546 and 1523. Similar is the position in Ahmedabad Zone where the variation is between 414 and 1541. In Madras Zone it varies between 52 to 368. No reason was indicated as to why the named persons were chosen. Even though it is open to the assessee to chose the persons, it cannot be left to its ipse dixit. No rational basis for selecting the persons was established. On considering the relevant factors, the authorities and CEGAT have recorded finding of fact that no rational basis has been established. 16.The scope for interference with findings recorded by the Tribunal if it has kept in view the correct legal position, has been dealt with by this Court in many cases. The position was illuminatingly stated by this Court in Collector of Customs, Bombay v. Swastic Woollens (P) Ltd. and Ors. [1988 (Supp) SCC 796] as follows : The expression "wool wastes" is not"9. defined in the relevant Act or in the notification. This expression is not an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
