1. In this appeal filed by the Revenue the matter relates to the valuation of the tyres which were sold by the respondents M/s. Birla Tyres. The Commissioner of Central Excise (Appeals) had allowed deduction of surcharge turn-over tax which were not shown separately in the invoices but according to the respondents were in built in the price. She has also allowed deduction of cash discount and secondary freight.
2. Arguing for the Revenue Shri V.K. Chaturvedi, ld. SDR submits that as regards the turn over tax/surcharge no evidence had been produced by the respondents that these amount were paid to the State Govt. As regards the cash discount it was his submission that the cash discount was not given at the time of the sale, the circular alone was not sufficient for claiming the deduction and that the appellant authority herself has doubted the genuineness of the credit notes. As regards the secondary freight it was his submission that while freight was admissible deduction, the secondary freight could not be allowed eduction when the freight was incurred beyond the deport and only depot prices formed the basis of assessment.
3. In reply Shri Gajendra Jain, authorised rep. submits that the order passed by the Commissioner of Central Excise (Appeals) is clear and the decision taken is as per the case law which had been referred by the respondents in the synopsis. He refers to the synopsis on record.
4. After hearing both the sides and after going through the facts on record we find that the order recorded by the ld. Commissioner of Central Excise (Appeals) is not categorical. With regard to turn over tax/surcharge while they are admissible deductions it has to be established that the amount claimed and allowed towards deduction were actually paid to the state authorities. As admittedly these taxes were not separately shown in the prices a categorical finding that t the amount claimed towards deduction had actually the been paid to the prescribed authorities is required which we find has not been done. As regards cash discount the ld. Commissioner (Appeals) had recorded that if the department was not satisfied with the documentary evidence given by them, the correct thing was to have conducted a study to find out if the dealers giving credit notes have actually benefitted from the cash discount. We find that in the show cause notice there was a specific allegation that in view of the amendment made in the definition of place of removal under section 44B of the Central Excise Act with the enactment of Finance Bill from 28.9.96 this and other deduction claimed were not permissible. In this connection the Larger Bench decision in the case of CCE, Meerut-II v. Prabhat Jarda 2000(38)RLT 657(CEGAT-LB) appears relevant.
5. With regards to other deductions which have been allowed by the Commissioner also the matter needs re-examination in the light of the above referred decision of the Larger Bench as well the various decisions cited by the respondents in their synopsis.
6. As the matter has not been adequately examined we set aside the same and remand the matter back to the jurisdictional Commissioner of Central Excise (Appeals) who would provide an opportunity to both the sides to present their case and then pass speaking appealable order as per law. The Revenue is also at liberty to plead the grounds which they have taken before us in this appeal. With these observation the appeal filed by the Revenue is allowed by way of remand. Ordered accordingly.