V.K. Agrawal, Member (T) - (1.)M /s. SICPA India Ltd. has filed this appeal against Order -in -Appeal No. 661/2003, dated 15 -12 -2003 by which the Commissioner (Appeals) has rejected the refund claim of Central Excise duty.
(2.)SHRI B.L. Narasimhan, learned Advocate, submitted that the Appellants manufacture printing inks; that the Government of India floated a global tender for the purchase of security printing ink; that they made an offer to supply 1381 MTs on a price subject to discount of 8%; that the Government of India placed an ad hoc order for a quantity of 165 MTs on 29 -1 -1996; that it was indicated in the order that the rates were subject to a discount of 8%; that the Appellants, under letter dated 30 -11 -96 informed the Bank Note Press that the discount of 8% was for a quantity of 1381 MTs and that for a quantity of 165 MTs, they would not be in a position to offer the said discount; that they commenced despatches of the printing ink from 16 -12 -96 and offered on their own a discount of 0.8% on the assurance by the Bank Note Press authorities that they would buy additional quantities for the subsequent period; that the Appellants agreed to provide discount of 8% under their letter dated 24 -2 -1997 for the full quantity; that accordingly, for the despatch of 165 MTs already made before the discount was finalized, the Bank Note Press released payments at the reduced rates and the Appellants issued Credit Notes; that they filed a refund claim on 7 -4 -1997 for the excess duty paid by them; that the Assistant Commissioner rejected the refund claim under Order -in -Original No. 521/97, dated 28 -10 -97 holding that the discount of 8% was not agreed upon, and therefore, not known at the place of removal or prior to removal of the goods; that on appeal filed by them, the Commissioner (Appeals), under Order -in -Appeal No. 32/2001 dated 7 -2 -2001 rejected their appeal holding that the discount negotiated subsequently after clearance of the goods have no relevancy for the purpose of arriving at the assessable value; that, however, the Appellate Tribunal vide Final Order No. 287/2002 -A, dated 12 -6 -2002, remanded the matter to the Adjudicating Authority for deciding the claim in the light of the ratio of the following decisions : -
(i) Camphor and Allied Products Ltd. v. CCE - 2000 (118) E.L.T. 65 (T -LB), (ii) Utkal Polyweave Industries P. Ltd. v. CCE - 2001 (136) E.L.T. 818 (T), (iii) CCE, Chandigarh v. Shivalik Electric Equipment Co. Ltd. - 2002 (140) E.L.T. 540 (T) = 2002 (49) RLT 270 (CEGAT).

(3.)THE learned Advocate mentioned that in de novo proceedings, the Deputy Commissioner passed the Order -in -Original No 202/2002, dated 30 -12 -2002 rejecting the refund claim on the premises that the facts in the instant cases are different from the facts of the cases mentioned in Tribunal's Final Order dated 12 -6 -2002; that the Commissioner (Appeals) also under the impugned Order has rejected their claim for refund of duty relying on Supreme Court's judgment in the case of MRF Ltd. v. CCE, 1997 (92) E.L.T. 309 (S.C.). The learned Advocate contended that the sale of goods was under a contract and at the time of offer itself, they had clearly indicated that discount would be admissible @ 8% on a quantity of 1381 MTs; that thus the requirement that discount should have been known to the customer prior to the removal of the excisable goods is fully satisfied; that, therefore, the discount extended by the Appellants by way of Credit notes subsequently is eligible for deduction from the price and hence the duty paid in excess during the period in question is liable to be refunded to the Appellants. He also mentioned the Bank Note Press had paid them only the reduced price less 8% discount and Excise duty thereon and, therefore, the question of passing on the excise duty to the buyer cannot arise; that in view of the decisions in Camphor and Allied Products, Utkal Polyweave and Shivalik Electric Equipment Co. Ltd., disallowing of the refund is incorrect; that though the facts were different in each of these cases, the ratio of the law applicable to each of the case is the same and that is why the Tribunal has remanded the matter with directions to consider the present case in the light of law laid down in these decisions. He finally submitted that the finding that the discount @ 8% was the discount agreed after the removal of the goods is not correct as the Bank Note Press was not willing to accept any discount less than 8% which is evident from the protracted negotiations that took place between the Bank Note Press and the Appellants; that the discount of 8% was the discount insisted upon by the Bank Note Press prior to the removal of the goods and was the matter negotiations during the removal of the goods and culminated it to an agreed basis after the removal of the goods. He relied upon the decision in the case of Telephone Cables Ltd. v. CCE, Chandigarh 2003 (154) E.L.T. 237 (T).
Countering the arguments, Mrs. Krishna A. Mishra, learned SDR, submitted that the goods were removed by the Appellants giving a discount @ 0.8% as the Bank Note Press had placed order for the impugned goods for a quantity of 165 MT only instead of 1381 M.T. indicated by the Appellants in their offer dated 1 -10 -1996; that thus the discount of 8% came to be given only when additional quantity was ordered by Bank Note Press; that had there been no additional quantity ordered, the Appellants would have allowed a discount of only 0.8%; that thus it is apparent that a discount of 0.8% was known at or prior to removal of goods. She contended that in terms of the judgment of the Apex Court in the case of Union of India v. Bombay Tyre International Ltd., 1984 (17) E.L.T. 329 (S.C.), discount known at or prior to removal of goods is only to be allowed as a deduction.