2022 (10) TMI 919 - AT - Central Excise

Validity of SCN issued - price escalation during GST era for goods supplied pre GST era - levy of duty of excise or GST - Demand of differential excise duty alongwith interest and penalty under Section 11A(4) - supplies made during September 2016 to November 2016 - upward revision of price - provisions of Section 142 (2) (a) of the CGST Act ignored. The Commissioner (Appeals) also rejected the appeal on the ground that under Section 142(2)(a) of CGST Act, the GST can be paid only in case where the price of any goods or service or both was revised upward on or after the appointed day. In this case the Commissioner (Appeal) has not treated it as upward revision of price but held that the 10% of the amount had already formed the part of the assessable value and was not a result of upward revision of price. Hence, it was held by the Commissioner (Appeals) that the amount paid by M/s IOCL in the month of April, 2018 was leviable to Central Excise duty and not GST. HELD THAT - The show cause notice is bad as it has been issued ignoring the provisions of Section 142 (2) (a) of the CGST Act, which is a provision to remove such difficulties for the transitional period - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Validity of show cause notice demanding differential excise duty for supplies made during September 2016 to November 2016, along with interest and penalty under Section 11A(4).

Analysis:

1. Issue of Validity of Show Cause Notice:
The main issue in this appeal was the validity of the show cause notice dated 28/02/2019 demanding differential excise duty for supplies made during September 2016 to November 2016, along with interest and penalty under Section 11A(4). The appellant, a manufacturer of LPG cylinders, had entered into contracts with M/s Indian Oil Corporation Ltd. (IOCL) for the supply of LPG cylinders. The dispute arose when the Central Excise Audit Party objected that excise duty should have been paid instead of GST on the differential amount paid by IOCL to the appellant. The Deputy Commissioner Audit issued the show cause notice demanding excise duty, which was confirmed by the Assistant Commissioner and the Commissioner (Appeals). However, the appellant contended that the supplementary invoice raised by them in April 2018, for the balance price of the goods settled by the purchaser, was in line with Section 142(2)(a) of the CGST Act, and hence, no tax was short paid or not paid.

2. Interpretation of Section 142(2)(a) of the CGST Act:
The appellant argued that the supplementary invoice raised by them in April 2018 was covered under Section 142(2)(a) of the CGST Act, which deems such invoices to have been issued in respect of an outward supply under the Act. The appellant maintained that they had paid the applicable IGST at 18% on the differential amount as per the terms of the contract with IOCL. The Tribunal, after considering the contentions of both parties, held that the show cause notice was invalid as it ignored the provisions of Section 142(2)(a) of the CGST Act, which was specifically meant to address transitional difficulties. Consequently, the Tribunal allowed the appeal, set aside the impugned order, and granted the appellant consequential benefits in accordance with the law.

In conclusion, the Tribunal's decision focused on the interpretation and application of Section 142(2)(a) of the CGST Act to determine the validity of the show cause notice demanding excise duty on the supplies made by the appellant. The Tribunal found in favor of the appellant, ruling that the notice was issued contrary to the provisions of the Act, and therefore, the appellant was entitled to consequential benefits.