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2023 (12) TMI 1104 - AT - Central ExciseValuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - extended period of limitation - penalty - HELD THAT - The issue is no more res integra as the Hon ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS 2014 (3) TMI 42 - SUPREME COURT has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon ble Supreme Court it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty. Extended period of limitation - penalty - HELD THAT - It is observed that there were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus the appellant cannot be faulted for not including the same in the assessable value. In the impugned order the adjudicating authority while agreeing that extended period not invocable in this case imposed penalty equal to the duty confirmed under Section 11AC of the CEA 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly the penalty imposed under Section 11AC not tenable - Further Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018 clarifying acceptance of some of the orders passed by the Hon ble Supreme Court High Courts etc wherein no review petition has been filed - In the said clarification the order passes by the Hon ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit Loss account and balance sheet of the impugned periods. Accordingly by following the above Circular issued by the Board the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA 1944 also not imposable. Appeal allowed in part.
Issues involved:
The issues involved in the present case are the includability of sales tax concession retained by the Appellant in the assessable value for the levy of Central Excise duty and the imposition of penalty under Section 11AC of the CEA, 1944. Includability of Sales Tax Concession: The Appellant appealed against the Order-in-Original confirming a demand, while dropping the demand raised under the extended period but imposing a penalty. The Appellant argued that as per the decision in Super Synotex (India) Ltd. Vs CCE, Jaipur, the sales tax concession retained should be added in the assessable value for Central Excise duty. The Appellant contended that the duty payable for the normal period should be calculated by treating the amount collected as cum-duty. The Tribunal agreed with the Appellant, holding that the sales tax concession retained must be included in the assessable value for Central Excise duty. Payment of Duty and Penalty Imposition: The Appellant agreed to pay duty for the normal period but argued that the duty payable should be calculated by treating the amount collected as inclusive of duty. The Tribunal concurred with the Appellant's stance, stating that since the duty was not separately collected from customers, the amount collected should be considered inclusive of duty. Regarding the penalty imposed under Section 11AC of the CEA, 1944, the Tribunal found that the Appellant had not suppressed any information and had relied on previous Tribunal decisions. The Tribunal held that the penalty imposed was not justifiable as the Appellant could not be faulted for not including the sales tax concession in the assessable value. Circular and Extended Period: Referring to Circular No. 1063/2/2018-CX, the Tribunal noted that the Board clarified that the extended period should not be invoked in cases where no positive act of suppression was shown. The Tribunal found that the Adjudicating Authority failed to demonstrate any suppression by the Appellant. Relying on the Circular, the Tribunal concluded that the extended period was not applicable in this case, leading to the setting aside of the penalty under Section 11AC of the CEA, 1944. Decision and Disposal: The Tribunal partially allowed the appeal, directing the Appellant to pay duty for the normal period, considering the amount collected as cum-duty. The penalty imposed under Section 11AC of the CEA, 1944 was set aside. The appeal was disposed of by remanding for the calculation of duty payable for the normal period, with any consequential relief as per law.
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