Customs, Excise and Gold Tribunal - Tamil Nadu
Seshasayee Paper And Boards Ltd. vs Commissioner Of Customs And Central ... on 9 April, 1999
Equivalent citations: 1999(66)ECC279
ORDER V.K. Ashtana, Member (T)
1. This is an appeal against Order-in-Appeal No. 232/98 (CBE) dated 31-12-98 passed by the Commissioner (Appeals) wherein the Order-in-Original dated 30-6-97 passed by the Assistant Commissioner of Central Excise has been upheld. The said Order-in-Original had confirmed a duty amount of Rs. 5,34,760 under Section 11A of the Act as also the interest thereof under Section 11 AA ibid. The Order-in-Original as well as the Order-in-Appeal upheld that service charges paid to the appellants indenting agents in the form of trade discount is not permissible for deduction from the assessable value.
2. Heard Shri Vijayaraghavan, learned Consultant who submits that since the issue is a covered one, therefore both their stay applications as well as the main appeal may be considered together. He submits that the issue is already covered by decision of Hon'ble Supreme Court in their own case as in wherein in Para 5 the Hon'ble Apex Court has held that in case the indentor is also the purchaser as evidenced in invoices, then normal trade discount given to the indentor would be allowable as a deduction as in this case it would be a normal trade discount and not service charges. Learned Consultant submits that the entire duty demand confirmed by the Orders impugned concerns clearances of excisable goods to indenting agents as purchasers and not as mere indenting agents. Therefore the trade discount given on the invoices are clearly available to them as purchasers in the light of the said Supreme Court judgment. This matter of fact needs to be looked into as the same has not been considered either at the Original stage or at the appellate stage though these submissions were made before both the authorities including the citation noted above.
3. Heard Learned JDR Shri S. Sankaravadivelu who submits that in the Order-in-Appeal the Learned Commissioner (Appeals) has recorded a finding of fact that in these invoices the name of the indenting agent is different from the name of the purchaser and, therefore, the facts are different from those considered by the Hon'ble Apex Court in this judgment.
4. We have carefully considered the rival submissions as well as the records of the case. We find that since the issue lies on a short compass and could be covered by the judgment of the Hon'ble Supreme Court cited supra, therefore we grant waiver and stay of recovery and proceed to consider the main appeal itself. While doing so, we find that what is not clear from the records of the case as well as both the orders is whether the clearances of goods on which duty has now been demanded was to the indentor as a purchaser or otherwise. Learned JDR has submitted that the Commissioner (Appeals) has come to the conclusion that the supplies involved were not made to the indentors as purchasers but to some other buyers. This is merely a question of fact. Since Learned Consultant has submitted that facts would be available on a perusal of each of these invoices, therefore we find it is necessary to get these facts verified by the Original authority. If on such verification of facts it is found that the goods were cleared to the indentors as outright purchasers thereof, then in that case the Original authority shall have to apply the ratio of the decision of the Hon'ble Apex Court cited supra. In view of this matter the Order-in-Appeal and the Order-in-Original are set aside and the matter remanded for de novo consideration to the Original authority for ascertaining the facts in the matter as per the above directions. Before passing an order under these de novo proceedings, the Original authority shall hear the present appellants and also consider all evidences which they tender in support of their contention. The appeal succeeds by way of remand with the above directions.