{"id":253948,"date":"2005-03-07T00:00:00","date_gmt":"2005-03-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kirloskar-brothers-ltd-vs-commissioner-of-central-excise-on-7-march-2005"},"modified":"2015-08-09T01:52:48","modified_gmt":"2015-08-08T20:22:48","slug":"kirloskar-brothers-ltd-vs-commissioner-of-central-excise-on-7-march-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kirloskar-brothers-ltd-vs-commissioner-of-central-excise-on-7-march-2005","title":{"rendered":"Kirloskar Brothers Ltd vs Commissioner Of Central Excise, … on 7 March, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kirloskar Brothers Ltd vs Commissioner Of Central Excise, … on 7 March, 2005<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Ruma Pal, Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (civil)  6938 of 1999\n\nPETITIONER:\nKirloskar Brothers Ltd.\n\nRESPONDENT:\nCommissioner of Central Excise, Pune\n\nDATE OF JUDGMENT: 07\/03\/2005\n\nBENCH:\nRuma Pal & Arijit Pasayat & C.K. Thakker\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
Appellant calls in question legality of the judgment rendered by the West
\nRegional Bench at Mumbai of the Customs Excise and Gold (Control) Appellate
\nTribunal (in short the `CEGAT’).\n<\/p>\n
The factual position giving rise to the controversy is as follows:\n<\/p>\n
The appellant (also described as `assessee’) had filed a price list in Part
\nI of the Format prescribed for determination of value under Section 4<\/a> of
\nthe Central Excise and Salt Act<\/a>, 1944 (in short the `Act’) for the
\ncompressors manufactured by it. It also filed price list in Part II for the
\nsame kind of compressors showing a lesser price of Rs. 150 of assessable
\nvalue per compressor than in the Part I price list for sales to alleged
\nbulk buyers. Notice was issued proposing disallowance of the lower price on
\nthe ground that the bulk buyers did not constitute a different class of
\nbuyers and cannot be distinguished from other wholesale buyers; there
\ncannot be more than one price for the same class of buyers. In the notice
\nit was alleged that the claim for lower price on the ground that the bulk
\nbuyers purchased a substantial quantity had not been justified. The
\nAssistant Collector declined to accept the assessee’s contention that the
\nprice was on account of the fact that the bulk buyers constituted a
\ndifferent class because of the quantity of compressors that they purchased
\nand higher purchases in the past than other buyers. He confirmed the
\nproposal in the notice.\n<\/p>\n
On appeal by the assessee, the Collector (Appeals) accepted the contention
\nof the assessee that the bulk buyers were a different class and that the
\nlower price was permissible.\n<\/p>\n
An appeal was preferred by the present-respondent questioning correctness
\nof the order of the Collector (Appeals). Stand of the Revenue was that
\nnormal price applicable to wholesale dealer should be made applicable to
\nthe so-called bulk buyers and the Collector (Appeals) erred in concluding
\nthat there can be more than one class of dealers. CEGAT by the impugned
\njudgment held that there can be different class of buyers. While it is open
\nto the assessee to classify buyers according to commercial consideration,
\nthe classification has to be rational and identifiable based on commercial
\nconsideration and it cannot be arbitrary. According to the CEGAT it is not
\npossible to see the existence of any rational or commercial consideration
\nto distinguish the bulk buyers from any other buyers. The existence of any
\nrelationship with a customer to prove business consideration was also not
\nestablished.\n<\/p>\n
Accordingly, Revenue’s appeal was allowed.\n<\/p>\n
In support of the appeal, learned counsel for the appellant submitted that
\nCEGAT has missed the most relevant factor that the Revenue’s case was not
\nthat any extra commercial consideration existed so far as the present
\nappellant is concerned. That being so, the presumption is that the price
\nfixed was rational and the Collector (Appeals) had rightly decided in
\nfavour of the appellant. The beneficiaries were clearly identifiable. The
\nnames of the persons belonging to different regions were noted. Taking into
\naccount the previous periods’ turnover, the price concession was given. The
\nauthorities were clearly in error by observing that classifications cannot
\nbe made on regional basis. The comparison of the sales figures has been
\nmade by the authorities and CEGAT by taking all the regions together and
\nnot inter-zones. Merely because no minimum number of sales was indicated
\nwhile deciding the persons to whom concession is to be given, that does not
\nper se make the claim irrational. Reliance was placed on Metal Box India
\nLtd. v. Collector of Central Excise, Madras<\/a>, [1995] 2 SCC 90 to submit that
\neven a single individual whose transactions were considerable can
\nconstitute a class for granting discount. As discount was not based on any
\nextra commercial consideration it was deductible in terms of Section 4(1)<\/a>\n<\/p>\n
(a) (proviso) (i) of the Act. Reference was also made to a decision of the
\nSpecial Bench of CEGAT, New Delhi in Gora Mal Hari Ram Ltd. v. Collector of
\nCentral Excise, Delhi<\/a> (1994) 69 ELT 269 to contend that where there is a
\nrational differentia based on valid commercial consideration which has been
\nestablished, the Revenue cannot refuse to recognize the same unless it is
\nestablished that the transactions were not at arm’s length and in the usual
\ncourse of business. It was further submitted that the dealers as referred
\nto in Section 4(4)(c)<\/a> of the Act do not constitute a class different from
\nother buyers as noted in the definition of “wholesale trade”. The Revenue
\nAuthorities were not justified in holding that the dealers constituted a
\nclass and there cannot be class within the class. To justify its claim that
\ngrant of such discount was a normal trade practice, the price-list of
\nanother manufacturer M\/s Sriram Refrigeration Industries Ltd., Hyderabad,
\nwas filed with all relevant details. CEGAT came to an incorrect conclusion
\nthat the details were not filed.\n<\/p>\n
In response, Mr. K. Swami, learned counsel for the respondent submitted
\nthat mere absence of any extra commercial considerations does not per se
\nentitle an assessee to the benefit in terms of Section 4(1)(a)<\/a> (proviso)
\nunless an intelligible rationale for choosing differently between different
\ngroups of buyers is established. The assessee was granted an opportunity to
\njustify the ground for granting discount to the named persons. Except
\nstating that the management had taken a decision in that regard, no other
\nmaterial was placed for consideration. It was, therefore, contended that
\nthe Revenue Authorities and the CEGAT were justified in rejecting claim
\nmade by the assessee-appellant.\n<\/p>\n
We are concerned with clause (i) of the proviso to Section 4(1)(a)<\/a>. The
\nrelevant provision reads as under:\n<\/p>\n
“Section 4<\/a>. Valuation of excisable goods for purposes of charging of duty
\nof excise – (1) Where under this Act, the duty of excise is chargeable on
\nany excisable goods with reference to value, such value shall, subject to
\nother provisions of this section, be deemed to be –\n<\/p>\n
(a) the normal price thereof, that is to say, the price at which such goods
\nare ordinarily sold by the assessee to a buyer in the course of a wholesale
\ntrade for delivery at the time and place of removal, where the buyer is not
\na related person and the price is the sole consideration for the sale:\n<\/p>\n
Provided that –\n<\/p>\n
(i) where, in accordance with the normal practice of the wholesale trade in
\nsuch goods, such goods are sold by the assessee at different prices of
\ndifferent classes of buyers (not being related persons) each such price
\nshall, subject to the existence of the other circumstances specified in
\nclause (a), be deemed to be the normal price of such in relation to each
\nsuch class of buyers.”\n<\/p>\n
The expression “wholesale dealer” is defined in Section 2(k)<\/a>. Section 4(4)<\/a>\n<\/p>\n
(e) defines “wholesale trade” and the same reads as under:\n<\/p>\n
“Wholesale trade” means sales to dealers, industrial consumers,
\nGovernment, local authorities and other buyers, who or which purchase their
\nrequirements otherwise than in retail.”\n<\/p>\n
In order to get benefit of Section 4(1)(a)<\/a> (proviso) (i) the assessee has
\nto establish that discount claimed was in accordance with the normal
\npractice of wholesale trade in the concerned goods sold to different
\nclasses of buyers, and it shall be subject to the existence of other
\ncircumstances specified in clause (a). Such circumstances are: (a) Charging
\nof normal price at which such goods are ordinarily sold; (b) sale must be
\nto a buyer in the course of wholesale trade; (c) the sale must be in the
\nwholesale trade for delivery at the place and time of removal; (d) the
\nbuyer is not a related person; and (e) the price is the sole consideration
\nfor the sale. In order to show that the goods are sold to different class
\nof buyers in accordance with normal practice it has to be established that
\nsame was the normal practice of the wholesale trade in such goods. One or
\ntwo instances cannot be termed as the normal practice of the wholesale
\ntrade. It essentially depends upon number of persons engaged in such trade.
\nBy way of illustration it can be said that if out of ten dealers engaged in
\nthe wholesale trade in the concerned goods only two give discount while
\nothers do not it cannot certainly be normal practice of the wholesale trade
\nin such goods. It would depend upon the question whether majority of the
\npersons engaged in the wholesale trade grant such discount. The question
\nhas to be adjudicated on the factual premises. In the instant case the
\nassessee-appellant has not placed on record the number of persons engaged
\nin the wholesale trade.\n<\/p>\n
We need not go into the broader question as to whether the “dealers”
\nreferred to in clause (e) of Section 4(4)<\/a> only refers to those who buy in
\nbulk for trading and whether the bulk purchasers constitute a different
\nclass amongst the class of buyers as referred to in Section 4(4)(e)<\/a>.\n<\/p>\n
It is true, classification can be made on the basis of region depending
\nupon the quantum of turnover in a particular region and special factors
\nrelatable to that region. It cannot be said that the discount should be
\nuniform in all circumstances in all categories of buyers all over the
\ncountry. But discount has to be as per the normal practice of the wholesale
\ntrade in such goods and the discount cannot be given on extraneous
\nconsiderations and has to be founded on some rational basis.\n<\/p>\n
The expression “rational” means as per The Law Lexicon, Second Edition
\n1997, “endowed with reasons”.\n<\/p>\n
The expression “Irrational” means as per The Law Lexicon, Second Edition
\n1997, illogical not endowed with reason, insane.\n<\/p>\n
There may be cases, where in a particular region there is a scope for
\nincreasing the turnover by giving incentive to some. But there must be some
\nintelligible criteria for treating the benefited persons differently from
\nothers. It is true that comparison can or may be made intra-region and not
\nby taking all regions together. But even then the appellant has not shown
\nthe justification for wide variation within the same region. For example,
\nin region where transactions are substantial i.e. Delhi the variation is
\nbetween 546 and 1523. Similar is the position in Ahmedabad Zone where the
\nvariation is between 414 and 1541. In Madras Zone it varies between 52 to\n<\/p>\n
368. No reason was indicated as to why the named persons were chosen. Even
\nthough it is open to the assessee to chose the persons, it cannot be left
\nto its ipse dixit. No rational basis for selecting the persons was
\nestablished. On considering the relevant factors, the authorities and CEGAT
\nhave recorded finding of fact that no rational basis has been established.\n<\/p>\n
  The scope for interference with findings recorded by the Tribunal if it
\n  has kept in view the correct legal position, has been dealt with by this
\n  Court in many cases. The position was illuminatingly stated by this Court
\n  in Collector of Customs, Bombay v. Swastic Woollens (P) Ltd. and Ors<\/a>.,
\n  [1988] Supp. SCC 796 as follows:\n<\/p>\n
\t“9. The expression “wool wastes” is not defined in the relevant Act
\n\tor in the notification. This expression is not an expression of
\n\tart. It may be understood, as in most of financial measures where
\n\tthe expressions are not defined, not in a technical or preconceived
\n\tbasis but on the basis of trade understanding of those who deal
\n\twith these goods as mentioned hereinbefore. The Tribunal proceeded
\n\ton that basis. The Tribunal has not ignored the Technical
\n\tCommittee’s observations. We have noted in brief the Tribunal’s
\n\thandling of that report. The Tribunal has neither ignored the
\n\tobservations of CCCN nor the Board’s Tariff Advice. These
\n\tobservations have been examined in the light of the facts and
\n\tcircumstances of the case. One of the basis factual disputes was
\n\tlong length of sliver tops. Having regard to the long length, we
\n\tfind that the Tribunal was not in error. Whether a particular item
\n\tand the particular goods in this case are wool wastes, should be so
\n\tconsidered or not is primarily and essentially a question of fact.
\n\tThe decision of such a question of fact must be arrived at without
\n\tignoring the material and relevant facts and bearing in mind the
\n\tcorrect legal principles. Judged by these yardsticks the finding of
\n\tthe Tribunal in this case is unassailable. We are, however, of the
\n\tview that if a fact finding authority comes to a conclusion within
\n\tthe above parameters honestly and bona fide, the fact that another
\n\tauthority be it the Supreme Court or the High Court may have a
\n\tdifferent perspective of that question, in our opinion, is no
\n\tground to interfere with that finding in an appeal from such a
\n\tfinding. In the new scheme of things, the Tribunals have been
\n\tentrusted with the authority and the jurisdiction to decide the
\n\tquestions involving determination of the rate of duty of excise or
\n\tto the value of goods for purposes of assessment. An appeal has
\n\tbeen provided to this Court to oversee that the subordinate
\n\ttribunals act within the law. Merely because another view might be
\n\tpossible by a competent court of law is no ground for interference
\n\tunder Section 130-E<\/a> of the Act though in relation to the rate of
\n\tduty of customs or to the value of goods for purposes of
\n\tassessment, the amplitude of appeal is unlimited. But because the
\n\tjurisdiction is unlimited, there is inherent limitation imposed in
\n\tsuch appeals. The Tribunal has not deviated from the path of
\n\tcorrect principle and has considered all the relevant factors. If
\n\tthe Tribunal has acted bona fide with the natural justice by a
\n\tspeaking order, in our opinion, even if superior court feels that
\n\tanother view is possible, that is no ground for substitution of
\n\tthat view in exercise of power under clause (b) of Section 130-E<\/a> of
\n\tthe Act.”<\/p>\n
The position was reiterated in West Bengal Electricity Regulatory
\nCommission v. CESC Ltd., [2002] 8 SCC 715, Commissioner of Customs, Chennai
\nv. Adani Exports Ltd. and Anr<\/a>., [2004] 4 SCC 367 and recently in
\nCommissioner of Customs, Mumbai v. M\/s Bureau Veritas and Ors., JT<\/a> (2005) 2
\nSC 348.\n<\/p>\n
Above being the position, we find no merit in this appeal which is
\naccordingly dismissed with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kirloskar Brothers Ltd vs Commissioner Of Central Excise, … on 7 March, 2005 Author: A Pasayat Bench: Ruma Pal, Arijit Pasayat, C.K. Thakker CASE NO.: Appeal (civil) 6938 of 1999 PETITIONER: Kirloskar Brothers Ltd. RESPONDENT: Commissioner of Central Excise, Pune DATE OF JUDGMENT: 07\/03\/2005 BENCH: Ruma Pal & Arijit Pasayat & […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-253948","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKirloskar Brothers Ltd vs Commissioner Of Central Excise, ... on 7 March, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kirloskar-brothers-ltd-vs-commissioner-of-central-excise-on-7-march-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kirloskar Brothers Ltd vs Commissioner Of Central Excise, ... on 7 March, 2005 - 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