Customs, Excise and Gold Tribunal - Calcutta
Ubique Metamed Pvt. Ltd. vs Cce on 9 November, 2004
ORDER V.K. Jain, Member (T)
1. Heard Shri Chattopadhyay, Consultant for the Appellant on the Stay Petition. The dispute in the present case with regard to the inclusion of Bonus received by the assessee from the supplier of the goods. He has drawn our attention to the contract entered between the assessee and his supplier whether the bonus/penalty on certain terms and condition is mentioned in the terms of contract. He submits that bonus or penalty is not to be included in the assessable value as per section 4 of the Central Excise Act. In support of his contention, he submits that Supreme Court has dismissed the civil appeal filed by the Commissioner against the order of the Tribunal NO. 230/200 in case of Bharat Refractories Ltd. v. Commissioner wherein the Tribunal held that "onus amount received by the assessee from is supplier is not includible in the assessable value". He also relies the Tribunal judgment in the case of Jalan Refractories (P) Ltd. v. CCE, Jaipur reported in 2000 (41) RLT 3 (CEGAT).
2. Heard Shri N.K. Mishra, learned JDR. He has taken us to the contract entered between the assessee and his buyers particularly, to the payment terms wherein it has been specified that balance 40% payment for the quantity installed shall be released with 15 days of lifting of the runner after adjusting the bonus and penalty as applicable for the receivable runner. Thus he says that the bonus has to be included in the assessable value. He also relied to the Tribunal decision in Kamala Dice and Devices Ltd. reported in 2003 (152) ELT 481 (Tri-Delhi).
3. We have heard both the sides. After hearing both the sides and in view of the Tribunal's order No. 230/2002-A, in case of Bharat Refractories Ltd. v. Commr. referred to above, we grant the stay for duty & Penalty till further orders. Case to come up on 11th January, 2005.