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TMI Blog2000 (7) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... iff Act. During the relevant period their clearances were assessed on provisional basis under Rule 9B of the Central Excise Rules, 1944 pending verification and submission of proof of actual expenses incurred in respect of deductions claimed on account of freight, Luxury Tax, Insurance, Cash discount, Turn over discount, Regional discount, Central Sales Tax, etc. The appellants by their letter dated 5-4-1997 informed Jurisdictional Range Superintendent that excisable goods manufactured by them are cleared after payment of duty to their duty-paid godown and from there the excisable goods are despatched to their dealers and distributors located all over the country. By their further letter dated 9-11-1997 they informed that they had not claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 173C production of certain documents such as sales invoice, invoice-cum-challan or like documents used by assessee for sale and removal of goods and a certificate to the effect that the documents represented the price actually charged by assessee and that there was no additional consideration flowing directly or indirectly from such sales over and above what has been declared was a mandatory provision binding on the manufacturer. He also noted that under Rule 9B(1)(c) where the proper Officer deemed it necessary to make an enquiry he can impose conditions for observance by assessee and make a provisional assessment on execution of a bond binding himself for payment of the difference between the amount of duty provisionally assessed and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision in MRF case [1995 (77) E.L.T. 433 (S.C.)] on the ground that the said judgment did not relate to deduction on account of incentive schemes. 5. Arguing the case of the appellant, ld. Consultant, Shri Lachman Dev submitted that the appellants sold their goods on for destination price. Since the cost of transportation, incidence of octroi and insurance, the quantum of regional discount and the incidence of sales tax varied and were different for supplies to different destinations, it was not possible to determine the correct assessable value of the goods cleared from the appellant's factory for determining the amount of duty payable. Accordingly, the goods were being assessed provisionally in terms of Rule 9B. Final figures of expendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow rejected the deduction claimed by the appellants on account of incentive scheme by holding that the disclosure of deduction on account of incentive scheme must have been made at the time of removal of the goods from the factory and not subsequently. In this connection ld. Consultant submitted that the Commissioner (Appeals) had, while relying on Paragraph 59 of the Apex Court judgment in MRF Tyres case (supra), failed to notice the subsequent paragraph in the same judgment. In Paragraph 60 it had been held that where there was a clear finding that the system of discount was prevalent in the industry and was known and understood at the time of removal of particular goods, deductions would be permissible though the amount may be quantified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the position that provisional assessment has to be treated as provisional for all purposes and not merely for purpose of considering the grounds already disclosed. 7. Ld. JDR Shri Sanjeev Srivastava reiterated the views expressed by the authorities below. 8. We have considered the submissions of both sides and have perused the record and the case law. On a specific querry from the Bench, the Department could not point out any specific provision to the effect that it was necessary for the assessee to disclose to the Department the existence of the scheme before it was launched or during the currency of the scheme. We find from the observations of the Apex Court in MRF judgment (supra) that the test to be satisfied is whether the disco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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