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2024 (1) TMI 35 - AT - Central ExciseValuation/calculation of Excise duty - includability of the sales tax concession retained by the Appellant in the assessable value - inclusion of value of goods cleared under Section 4A for computing the duty payable for the normal period of limitation, or not - extended period of limitation - penalty. Valuation/calculation of Excise duty - includability of the sales tax concession retained by the Appellant in the assessable value - 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, 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. Invocation of extended period of limitation - It is also contended that the value of goods cleared under Section 4A should not be included for computing the duty payable for the normal period of limitation - HELD THAT - There are merit in the argument of the Appellant. The VAT incentive scheme is applicable only in respect of the goods cleared under Transaction Value as provided under Section 4 of the CEA, 1944. It is not applicable to the goods cleared under Section 4A. Hence, the contention of the Appellant is agreed upon that value of goods cleared under Section 4A should not be included for computing the duty payable for the normal period of limitation. Levy of penalty - HELD THAT - The adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable. Appeal allowed in part.
Issues Involved:
The issues involved in the judgment are the confirmation of demand, imposition of penalty under Section 11AC of the CEA, 1944, inclusion of goods cleared under Section 4A of the Valuation for duty computation, and the applicability of extended period for raising demands. Confirmation of Demand and Penalty Imposition: The impugned order confirmed the demand of Rs.58,05,357/- including Education Cess and SHE Cess for the normal period of limitation, dropped the demand raised by invoking the extended period, and imposed a penalty of the same amount under Section 11AC of the CEA, 1944. The Appellant challenged the penalty imposition, arguing that they did not collect duty from customers, and thus, the amount collected should be treated as inclusive of duty. They contended that there was no suppression involved, making the penalty not imposable. Inclusion of Sales Tax Concession in Assessable Value: The main issue was regarding 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 should not be added to the assessable value based on past decisions and a Board Circular. The Tribunal held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the levy of Central Excise duty. Exclusion of Goods Cleared under Section 4A for Duty Computation: The Appellant contended that the value of goods cleared under Section 4A should not be included in computing the duty payable for the normal period of limitation. They argued that the VAT incentive scheme applied only to goods cleared under Transaction Value as per Section 4 of the CEA, 1944, not under Section 4A. The Tribunal agreed, holding that the value of goods cleared under Section 4A should not be included for computing the duty payable for the normal period of limitation. Applicability of Extended Period and Penalty Imposition: The Tribunal observed that the Adjudicating Authority failed to show any positive act of suppression by the Appellant. Referring to a Board Circular, it held that the extended period was not invocable in this case, and consequently, the penalty under Section 11AC of the CEA, 1944 was not imposable. The penalty imposed was set aside based on the lack of proper findings for its imposition.
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