2008 (4) TMI 258 - AT - Central Excise

Short payment of duty - clearances of motor cycles by appellants to their dealers - as per the appellant s agreement with dealers, the dealers were providing free after sale service to the customers for which the dealers were being reimbursed by the appellant @ Rs. 70/- per service held that reimbursement was not an additional consideration flowing from dealer to manufacturer but it was borne by manufacturer, hence it is not includible in A.V. of Motor cycle cleared to dealer

Summary

Issues Involved:
1. Inclusion of after-sale service charges in the assessable value.
2. Validity of extended limitation period under proviso Section 11A(1) of the Central Excise Act, 1944.
3. Imposition of penalty under Section 11AC of the Act read with Rule 173Q (1) of Central Excise Rules 1944 and Rule 25 (1) of Central Excise Rules 2001/2002.

Detailed Analysis:

1. Inclusion of After-Sale Service Charges in the Assessable Value:
The primary issue was whether the amount reimbursed by the appellant to their dealers for providing free after-sale service to the customers should be included in the assessable value of the motorcycles. The appellant argued that the reimbursement for free after-sale service was already included in the assessable value and therefore should not be added again. They cited several judgments, including those of the Supreme Court, to support their claim that such reimbursements are not includible in the assessable value. The Tribunal noted that the transaction value under Section 4(3)(d) of the Central Excise Act includes any amount the buyer is liable to pay to the assessee by reason of or in connection with the sale, but this does not include amounts paid by the assessee to the buyer. The Tribunal concluded that since the dealers were reimbursed by the appellant for the free after-sale service, it was not an additional consideration flowing from the buyer to the seller and thus not includible in the assessable value.

2. Validity of Extended Limitation Period:
The department invoked the extended limitation period of five years under proviso Section 11A(1) of the Central Excise Act, 1944, alleging suppression of facts by the appellant. The appellant contended that there was no suppression of facts as the agreement with the dealers was in vogue for several years, and the department was aware of the practice. The Tribunal found that the department's reliance on the Board Circular No. 681/72/02/CX dated 12/12/2002 was misplaced, and the show cause notice should have been issued within one year from the date of the circular. Therefore, the invocation of the extended limitation period was deemed unreasonable and arbitrary.

3. Imposition of Penalty:
The Commissioner imposed a penalty equal to the duty demand under Section 11AC of the Act read with Rule 173Q (1) of Central Excise Rules 1944 and Rule 25 (1) of Central Excise Rules 2001/2002. The Tribunal, however, found that since the inclusion of after-sale service charges in the assessable value was not justified, the penalty imposed was also unsustainable. The Tribunal set aside the penalty along with the duty demand.

Conclusion:
The Tribunal concluded that the amount reimbursed by the appellant to their dealers for providing free after-sale service to the customers was not includible in the assessable value. The extended limitation period invoked by the department was found to be unreasonable and arbitrary. Consequently, the penalty imposed under Section 11AC was also set aside. The appeal was allowed, and the impugned order was set aside.