Carbon and Chemicals India Ltd. Vs. Collr. of C. Ex. - Court Judgment

Excerpt:

.....been filed.2. the department has no case that credit note was a manipulation or that the cheque had not been issued or encashed. the passing of the credit note and the actual refund of the discount amount is not disputed. hence it is clear that discount was actually granted though the actual payment was postponed. we see no reason why it should be held that the discount referred to in the price list was not offered or granted to the buyer.3. the supplies were made on the basis of the price list filed on 12-11-1984 and approved on 29-12-1984 w.e.f. 1-11-1984. the assessments till the approval should be deemed to be provisional. if that be so, the question of limitation would not arise insofar as clearances made till 29-12-1984 were concerned. since the refund claim was made on 10-6-1985, the refund claim in respect of duty paid after 10-12-1984 would be within six months prior to the date of approval. thus we find that entire claim would be in time.4. the impugned orders are set aside and the refund claim is allowed.the appeal is allowed. consequential relief shall follow.

Judgment:

1. Appellants are engaged in the manufacture of HAF Carbon Black. Price list in Part-II on the basis of contract entered into between the appellants and the M/s. M.R.F., Kotayam was filed on 12-11-1984 to take effect from 1-11-1984. Price declared was Rs. 14,000/- per metric ton.

Price list showed discount of Rs. 700/- per MT was to be given as agreed upon. Price list was received on 12-11-1984 and approved on 29-12-1984 w.e.f. 1-11-1984. During the period 6-11-1984 to 31-12-1984, appellants were paying duty on the value of Rs. 14,000/- per MT and the invoices issued did not give deduction for the discount. Subsequently the appellants filed refund claim alleging that as per practice the discount was not deducted in the invoices, but the discount was paid to the buyer as per credit note dated 2-3-1985 and cheque dated 10-7-1985 issued by the State Bank of Travancore for the discount amount and thus the discount contemplated in the price list had actually been given.

The Assistant Collector rejected the claim on the ground of limitation as well as on the ground that the discount had not been deducted in the invoice. This order having been confirmed by the Collector (Appeals), the present appeal has been filed.

2. The Department has no case that credit note was a manipulation or that the cheque had not been issued or encashed. The passing of the credit note and the actual refund of the discount amount is not disputed. Hence it is clear that discount was actually granted though the actual payment was postponed. We see no reason why it should be held that the discount referred to in the price list was not offered or granted to the buyer.

3. The supplies were made on the basis of the price list filed on 12-11-1984 and approved on 29-12-1984 w.e.f. 1-11-1984. The assessments till the approval should be deemed to be provisional. If that be so, the question of limitation would not arise insofar as clearances made till 29-12-1984 were concerned. Since the refund claim was made on 10-6-1985, the refund claim in respect of duty paid after 10-12-1984 would be within six months prior to the date of approval. Thus we find that entire claim would be in time.

4. The impugned orders are set aside and the refund claim is allowed.

The appeal is allowed. Consequential relief shall follow.