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2023 (12) TMI 1239 - AT - Central ExciseLevy of Central Excise Duty - inclusion of sales tax concession retained by the assesses in the assessable value or not - 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, we hold 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. Since the Appellant has not collected the duty separately from the customers, the amount collected is to be treated as inclusive of duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty. Penalty - HELD THAT - 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. Extended period of limitation - HELD THAT - In the present case, it is observed 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, it is held that extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable. The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
Issues involved: The appeal was filed against the impugned Order-in-Original confirming a demand, dropping the demand raised by invoking the extended period, and imposing a penalty under Section 11AC of the CEA, 1944.
Summary: Issue 1 - Demand Confirmation and Penalty Imposition: The Order-in-Original confirmed a demand for Rs.19,75,083/- for the normal period of limitation, dropped the demand raised under the extended period, and imposed a penalty under Section 11AC of the CEA, 1944. The Appellant appealed against this decision, arguing that the duty payable for the normal period should be calculated by treating the amount collected as cum-duty. The Appellant also contended that no duty was collected separately from customers and that there was no suppression involved, hence penalty under Section 11AC should not be imposed. Issue 2 - Sales Tax Concession and Assessable Value: The issue involved in the appeal was the includability of the sales tax concession retained by the Appellant in the assessable value for the levy of Central Excise duty. The Appellant argued that the sales tax concession retained should not be added to the assessable value based on certain decisions. However, the Tribunal held that based on the decision of the Hon'ble Supreme Court in the case of Super Synotex (India) Ltd. Vs CCE, Jaipur, the sales tax concession retained by the Appellant is required to be added in the assessable value for the levy of Central Excise duty. Decision: The Tribunal observed that the Appellant agreed to pay duty for the normal period but contended that the amount collected should be considered as cum-duty. The Tribunal agreed with the Appellant's contention, stating that since no duty was collected separately, the amount collected should be treated as inclusive of duty. The Tribunal also found that the penalty imposed under Section 11AC was not justified as there was no proper finding for its imposition. Referring to a Circular issued by the Board, the Tribunal held that the extended period was not invocable in this case, and therefore, the penalty under Section 11AC was set aside. The appeal was partially allowed, with the Appellant being liable to pay duty for the normal period of limitation, and the penalty under Section 11AC being set aside.
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