2023 (9) TMI 1132 - AT - Central Excise

Valuation - inclusion of drawing, designing and engineering charges collected by the Appellant in the assessable value for the purpose of calculating the Central Excise duty or not - time limitation. Appellant paid service tax on designing and engineering services and not included the same in the assessable value for the purpose of payment of central excise duty. HELD THAT - When a tax under any statute is assessed and paid as per the requirement of the statute, it must be complied with. Even though the assessee might have paid the tax wrongly under a different tax statute, it does not satisfy the compliance of the statute under which the assessee is rightly required to pay their tax liability. This view has been held by this tribunal in the case of PHOENIX YULE LIMITED VERSUS COMMR. OF CENTRAL EXCISE, KOL-III 2018 (7) TMI 683 - CESTAT KOLKATA where it was held that The charges paid by the subscribers for procuring a SIM Card are generally processing charges for activating the cellular phone and consequently the same would necessarily be included in the value of the SIM Card. Thus, assessee appellant should have included the charges of engineering drawing and design in the assessable value of conveyor belts as per the provisions of Section 4 of Central Excise Act, 1944 - also, the payment of service tax on the charges recovered from the buyer of engineering drawing design is not a proper compliance of provisions of Central Excise Act, 1944 and thus short payment of Central Excise duty stands recoverable. The excise duty can be demanded on the same amount charged for drawing and designing, even if service tax has already been discharged on the same value, if they are related to the goods manufactured. As the department has not examined each contract separately to ascertain the liability, we deem it proper to remand the matter back to the adjudicating authority to examine the issue afresh and pass an appropriate order. Time limitation - HELD THAT - As there is no suppression of fact with an intention to evade payment of tax has been established in this case, the extended period cannot be invoked in this case. Accordingly, the demand confirmed by invoking the extended period of limitation set aside. Since the exact quantum of duty, if any, liable to be confirmed within the normal period of limitation is not available in the records, the matter needs to be remanded back to the adjudicating authority on this count also to determine the duty liability, if any, on the basis of the above said observations. Appeal allowed by way of remand.

Summary

Issues Involved:
1. Inclusion of drawing, designing, and engineering charges in the assessable value for Central Excise duty.
2. Simultaneous imposition of excise duty and service tax.
3. Invocation of the extended period of limitation.

Summary:

1. Inclusion of Drawing, Designing, and Engineering Charges in Assessable Value:
The primary issue was whether the drawing, designing, and engineering charges collected by the Appellant should be included in the assessable value for calculating Central Excise duty. The Appellant argued that these services were related to post-manufacturing activities and not the manufacture of goods, thus they paid service tax on these services separately. However, the Tribunal observed that as per Explanation 1 (iv) of Rule 6 of Central Excise Valuation Rules, such charges are includable in the assessable value if they pertain to the goods manufactured. The Tribunal noted a statement by the Works Manager indicating that drawing, design, and engineering are integral to the manufacturing process. Therefore, it was held that these charges should be included in the assessable value.

2. Simultaneous Imposition of Excise Duty and Service Tax:
The Appellant contended that excise duty cannot be demanded on the same amount on which service tax has already been discharged. However, the Tribunal disagreed, citing the case of Phoenix Yule Ltd Vs CCE, Kol-III, and the Supreme Court's decision in M/s Idea Mobile Communication Ltd., stating that paying tax under one statute does not exempt compliance under another statute. Thus, it was held that excise duty can be demanded on the same amount even if service tax has been paid.

3. Invocation of the Extended Period of Limitation:
The Appellant argued that the Notice was barred by the limitation of time, as it was issued on 14.02.2008 for the period March 2003 to June 2007, and there was no suppression of facts with the intention to evade tax. The Tribunal found merit in this contention, noting that the Appellant had been regularly paying service tax and filing ST-3 Returns, which were within the department's knowledge. It was held that the extended period of limitation could not be invoked due to the absence of suppression of facts. Consequently, the demand confirmed by invoking the extended period was set aside, and the matter was remanded to determine the duty liability within the normal period of limitation.

Conclusion:
The appeal was disposed of by remanding the matter to the adjudicating authority to examine each contract separately and determine the duty liability, if any, within the normal period of limitation based on the observations made.