9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (8) TMI 963 - AT - Central ExciseValuation - Short payment of excise duty - whether the VAT which was exempt and which the appellant have collected from the customers and retained in terms of a Scheme of the State Government, is to be included in the assessable value or not - Invocation of extended period of limitation - Held that - appellant during the period of dispute were liable to pay duty on the assessable value including amount of VAT collected by them from their customers and retained by them and since the VAT amount was not included in the assessable value, there has been short payment of duty. However, the duty demand for the 2006-07 period has been issued only on 28.4.2011 by invoking extended period of five years under proviso to Section 11 A(1) and this demand would survive only if it can be proved that the appellant had not acted under bona fide belief or that they had committed fraud or wilful misstatement or suppression of facts with intent to evade payment of duty. However, we find that during the period of dispute, the Board s Circular No.378/11/98-CX dated 12.3.98 and No.671/62/2000-CX dated 9.10.2002 were in favour of the appellant, as these circulars clarified that sales tax/VAT collected by an assessee but retained and not paid to the Government is not includible in the assessable value. - appellant had acted under bona fide belief that VAT amount collected by them from the customers and retained was not includible in the assessable value and hence, in these circumstances, in view of the Apex Court judgement in the case of CCE, Vs. Continental Foundation Joint Venture (2007 (8) TMI 11 - SUPREME COURT OF INDIA), the longer limitation period would not be available and as such, the duty demand would have to be held as time barred. - Decision in the case of Super Synotex (India) Ltd. (2014 (3) TMI 42 - SUPREME COURT) followed - Decided against Revenue.
Issues:
- Whether the VAT collected by the appellant and retained by them should be included in the assessable value for the purpose of central excise duty payment. - Whether the extended period for demand of short paid duty is applicable in this case. - Whether the penalty under Section 11AC should be imposed on the appellant. Analysis: Issue 1: VAT Inclusion in Assessable Value The Tribunal considered the appellant's argument that the VAT collected and retained by them should not be included in the assessable value. The Tribunal noted that the Apex Court had ruled against the appellant in a similar case. However, the appellant contended that due to conflicting judgments and circulars during the disputed period, they acted in good faith believing the VAT was not includible. The Tribunal observed that Board circulars and Tribunal judgments favored the appellant's position during that time. Consequently, the Tribunal held that the appellant acted in good faith and the duty demand was time-barred, ultimately allowing the appeal. Issue 2: Extended Period for Demand Regarding the extended period for demand of short paid duty, the Tribunal found that since the appellant acted in good faith based on prevailing circulars and judgments, the longer limitation period under Section 11 A(1) was not applicable. Therefore, the duty demand issued after the extended period was deemed time-barred. Issue 3: Penalty Imposition The Tribunal analyzed the imposition of penalty under Section 11AC. The appellant argued that as they acted in good faith without any intent to evade duty, the penalty should not be imposed. The Departmental Representative contended that the appellant suppressed relevant facts, justifying the penalty. However, the Tribunal found that since the appellant acted in good faith, there was no basis for imposing a penalty under Section 11AC. Consequently, the Tribunal dismissed the Revenue's appeal seeking the penalty imposition. In conclusion, the Tribunal allowed the appeal filed by the Appellant, dismissed the Revenue's appeal, and disposed of the stay application.
|
