ASIAN PAINTS LTD. Vs. CCE

JUDGEMENT

(1.) APPEAL taken up for disposal with consent of both sides.

(2.) APPELLANT before us is a well -known manufacturer of paints, varnishes, thinners etc. falling under Chapters 32 and 38 of the Central Excise Tariff Act, 1985. In the price declarations filed from time to time the appellant has claimed deductions of cash discount at 5% whereas in actual point of fact cash discount was not passed on to all its customers. This has resulted in issue of three show cause notices dated 31.12.1997, 4.9.1998 and 3.4.1998 seeking to deny the amount or Rs. 11,12,625/ - on the following grounds. The applicant had four manufacturing units whereas these goods were despatched to different depots and branches. Goods were sold at all India dealer price which are uniformly applicable to all the dealers. Cash discount of 5% was allowed when payment was made immediately. The assessing authority in the impugned order has found in the Order in Original that finalising the provisional assessment for the period from July -August 1996, the cash discount was considered as inadmissible but it was also found by the assessing authority that the cash discount (in actual) was held to be admissible. He therefore disallowed the cash discount claimed by the assessee and confirmed the demand of Rs. 11,12,625/ -. An appeal was filed to Commissioner (Appeals) who by the impugned orders has held, after referring to the judgement of the Bombay High Court in a case of Jenson and Nicholson (I) Ltd v. UOI (17) ELT 4, where the price list has itself disclosed that a certain percentage was allowable discount, in cash, but in the present case the price list submitted by the appellant for the relevant period had no such pronouncement and he dismissed the appeal of the assessee. Hence the present appeal.

(3.) THE representative of the appellant while arguing on behalf of the appellant brought to our notice, the All India Dealer's price applicable during 1st September 1996 to 30th September 1997 in standard terms, wherein Clause (7) C provided as follows. "5% (Five Percent) Cash Discount will be allowed on the price list Rate net of all discounts and rebates allowed in the invoice to parties who settle the payment of the invoice immediately." This, the representative of the appellant states has been paid uniformly followed and he relied on the judgement of the Bombay High Court in the case of Goodlass Nerolac Paints v. UOI 1993 (65) ELT 186 which was confirmed by the Supreme Court in Special Leave Petition No C/Nil/1994 judgement dated 11.7.1994 where the Supreme Court dismissed the special leave petition on merits . The representative of the appellant further submitted the decision of the Tribunal in CCE v H and R Johson (India ) Ltd. and Perfect Circle Victor Ltd. v . CCE and C Pune 2001 (44) RLT 805 where the Tribunal under similar circumstances has held the assessee is entitled to the deductions claimed, following among other judgements, judgment of the Supreme. Court in GOI v. MRF 1995 (8) RLT 571. It is emphasised by the representative that the above judgements were brought to the notice of the appellate authority but yet the authority did not agree with the contentions and submissions made by the appellants.