ORDER
Jyoti Balasundaram, Vice President
1. The issue in dispute in these appeals relates to eligibility of the appellants herein to deductions of trade discount (rebate on cash sales) of aerated water. The authorities below had initially dismissed the claim for deduction on the ground that it was not in the nature of discount but in the nature of incentive. The matter was taken up before the Bombay High Court which by the Order dated 8.6.93 in W.P.No. 449/1981 (reported in 1993 (67) ELT 76 (Bom) remanded the case to the Asstt.Commissioner to determine afresh the claim of the assessees in respect of rebate on cash sales. After the remand by the Hon’ble High Court, the matter was adjudicated once again and the discount has been held to be not admissible deduction. Hence, these appeals.
2. We have heard both sides. We find that the Hon’ble High Court has clearly set out in para 4 of its order, the submission of ld.Counsel for the assessee and its findings thereon. Para 4 is re-produced in its entirety below :
Mrs. Mody then complained that the Assistant Collector was in error in disallowing the claim in respect of trade discount (rebate on cash sales). The learned Counsel urged that by letter dated February 1, 1984, it was pointed out to the Assistant Collector that the rebate is granted to a customer for a period of over 30 years. The letter further recites that outlets stocking Dukes Beverages and generating a minimum sale of 1,800 dozen annually are eligible for this rebate and this rebate is restricted to the metropolitan city of Bombay. The percentage of trade discount is also determined as 5% in respect of Soda and flavoured aerated beverages and 3% in respect of ready to serve beverages. The letter further recites that the rebate hooks are given to the customers to write daily purchases and to hand over the counterfoils to the salesman concerned. Mrs. Mody submitted that the Company had offered to produce the vouchers and ledgers before the Assistant Collector and the accuracy of the claim was examined by the Department but rebate was disallowed on the ground that the amounts of rebate are not certain at the time of clearance from the factory gate. The Assistant Collector felt that the rebate is not in the nature of discount but is in the nature of incentive and granted after the invoices are raised and the removal of the goods was complete. Mrs. Mody submits and, in our judgment, with considerable merit that the Assistant Collector has failed to properly examine the claim made by the Company. The learned Counsel urged that the Company has presented a specific case before the Assistant Collector that the rebate is granted for a period of over 30 years and the percentage of trade discount is fixed and the vouchers and ledger accounts are maintained in respect of grant of rebate. Mrs. Mody submitted that it is well-settled that the question as to whether the rebate is granted and whether it forms normal discount is to be determined with reference to the facts of every case and it is not permissible to overlook the factual data produced by the Company and deny the deduction claimed. In our judgment, the submission is correct and deserves acceptance. It is necessary for the Assistant Collector to examine whether the claim made by the Company that the rebate was granted for a period over 30 years at fixed rate and is reflected in the vouchers and account books is correct or otherwise. The Assistant Collector will examine the record relief upon by the Company and then determine afresh whether a trade discount should be allowed or otherwise. It is, therefore, necessary to remit the proceedings back to the Assistant Collector for determination of this aspect.
3. From the above, it is clear that the appellants/assessees were required to produce before the Asstt.Commissioner voucher and account books stated to be maintained in respect of grant of rebate. The assessees did not produce the same. On a specific query as to whether they would be in a position to produce the relevant vouchers and account books for the period 30 years as held by the High Court to be produced before the Asstt.Commissioner, the ld.Counsel fairly states that such documents are not available for being produced before the Authorities. In these circumstances, we hold that the (specific remand direction of the Bombay High Court has not been followed by the assessees and therefore, the authorities below had correctly rejected the claim for rebate on cash sales. Penalty of Rs. 5,000/-. Imposed on the assessees is however, set aside as we are of the view that this is not a fit case warranting imposition of penalty and further this is a case of finalization of assessment.
4. Appeals are rejected except for the penalty aspect.