Customs, Excise and Gold Tribunal - Delhi
Rama Vision Ltd. vs Commissioner Of Central Excise on 10 June, 2003
Equivalent citations: 2003(162)ELT664(TRI-DEL)
ORDER C.N.B. Nair, Member (T)
1. The Order impugned in this appeal has been passed pursuant to this Tribunal's Final Order of remand No. 1053/99-A, dated 28-7-99. The operative portion of that order reads as under:
"3. On going through the submissions with reference to the impugned order we find that though the party has taken a specific plea with reference to the time-bar issue, same has not been considered by the Commissioner (Appeals) since he has not given a find on time-bar issue, we are of the view that this matter will have to go back for re-consideration and accordingly we are remanding the matter to the jurisdictional Commissioner to decide the issue afresh including time-bar issue and to pass an order in accordance with law after providing an opportunity to the appellant. The appellant may make use of this opportunity to substantiate their claim during the readjudication proceedings.
4. Thus, this appeal is allowed by way of remand."
2. The issue involved was the claim of the appellant for refund of over Rs. 8 lakhs which had been paid during the period 1995-96. In the impugned order, the Commissioner (Appeals) has rejected the refund claim as being time-barred.
3. The contention of the appellant is that the finding that the refund claim was time-barred is entirely illegal inasmuch as the original payment of duty was provisional. During the hearing of the case, learned Counsel for the appellant took us through the relevant records and pointed out that impugned order itself had noted at Para 4(i) that "The provisional assessments for the year 1995-96 were finalised on 27-1-1997". Learned Counsel for the appellant pointed out that the appellant had filed the refund claim before finalisation of the assessment. He also referred to the appellant's letter dated 11-6-96 to the Assistant Commissioner of Central Excise stating that the refund claim has been filed "as directed by your office". The learned Counsel further pointed out that when the provisional assessment was subsequently finalised, issue of discount already raised in the refund application was not considered at all and only the other issue relating to reduction of freight element from the price was considered. Learned Counsel also pointed out that the appellant's refund claim related to the deduction of discount from the sale price which is a settled matter. It was submitted that whatever be the name under which they are known discounts are required to be deducted from the sale price for the purpose of determining the assessable value of the goods. Learned Counsel has also submitted that the repeated rejection of legitimate claim of refund in two rounds of proceedings has caused the appellant great loss, the amount related to the excess duty paid during the period 1995-96.
4. Learned SDR has pointed out that the impugned order has not dealt with the merits of the refund claim of the appellant at all. He, therefore, felt that the appeal cannot be allowed unless the merits of the case are gone into. In this connection, he also drew our attention to the Order-in-Original dated 30-5-97 passed by the Assistant Commissioner of Central Excise, Rampur. Learned SDR has pointed out that Assistant Commissioner had held that since the goods have been sold from the factory also, all the clearances, including the removals to depots (subject of present refund claim) were to be assessed on the basis the ex-factory price. Learned SDR has pointed out that that finding of the Assistant Commissioner has been rendered relying on the decision of the Supreme Court in the case of Indian Oxygen [1988 (36) E.L.T. 723 (S.C.)]. Learned SDR also has pointed out that since this is related to the case of finalisation of assessments, the appellant could not have claimed refund without challenging the order of finalisation of provisional assessment. He has drawn our attention to the decision of the Apex Court in the case of Flock India - 2000 (120) E.L.T. 285 (S.C.) in support of this submission.
5. In his reply to the points raised by the learned SDR, learned Counsel for the appellant has pointed out that appellant's case is not covered by the decision in the case of M/s. Indian Oxygen Ltd. All the sales of the appellant were on FOR destination basis and there were no ex-factory sales. Further, sales to dealers from the depots constituted a different class altogether from the Original Equipment (OE) purchases. Learned Counsel also pointed out that during the relevant period according to the clarification issued by the CBEC, all assessments were to be made on the invoice price basis. Learned Counsel also maintained that in any event this objection is not available to Revenue, since the original assessments had been made provisionally and the depot prices to dealers treated as a separate class. Further, the provisional assessment has also been finalised by the Revenue on the depot price basis on the question of deduction of freight. The question of refund on account of discount to dealers was not taken up while finalising the provisional assessment only because that issue was being separately considered in the refund application. The learned Counsel has also submitted that the finalisation of the issue relating to freight under the 1997 finalisation order has no relevance to the present refund application, since the issue of discount was being considered separately under the refund claim.
6. We have perused the records and considered the submissions made by both sides. There is no doubt that the original assessments were provisional. The refund application was filed as directed by the Departmental Authorities before the provisional assessments were finalised. Therefore, the question of time-bar of refund claim cannot arise in the present case. The Commissioner (Appeals) was clearly in error in rejecting the claim as time-barred. On the question of merits of the case also, the appellant is on strong ground. It is not denied that the discounts in question were being given by the appellants to dealers from the sale price. The objection that assessment of goods removed to depot were also required to be carried out on the basis of the ex-factory prices also does not appear to have any merit. The assessments were originally allowed on provisional basis only because the depot prices, after necessary deduction was to constitute the assessable value. The provisional assessment have been finalised except on the question of discount, based on the depot sale price. In these facts and circumstances, the question of discount is also required to be determined taking the depot price as the basis. It is settled law that discounts, whatever be the name under which they are known, are eligible for deduction. In view of these facts, and circumstances, we are of the opinion that refund as claimed by the appellant merits acceptance.
7. The refund claim relates to excess duty paid by the appellant about 8 years back. It is, therefore, just and proper that further delay does not take place. Accordingly, it is directed that refund amount shall be paid to the appellant within four weeks of the receipt of a copy of this order.