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TMI Blog2016 (6) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... On perusal of the original order and the impugned order, we find no reasoning to support the allegation of suppression of facts. The only reference made by the lower Authorities that the improper valuation was revealed during the course of audit and scrutiny of sales tax returns and as such it was concluded that the assessee had intention to evade Central Excise Duty. We find that considering the above factual background, the invocation of extended period in the present case is not legally sustainable. Accordingly, the demand of differential duty is to be restricted to the normal period which shall be payable with applicable interest by the appellants. On the same reasoning, we find imposition of penalty equal to the duty amount is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant is not eligible for abatement under Section 4 (3) (d) of Central Excise Act, 1944. The Revenue alleged that claiming excess abatement in the name of sales tax resulted in under valuation of excisable goods. The proceedings initiated resulted in the confirmation of demand of ₹ 4,04,037/-. The Original Authority apart from confirming the differential duty, imposed penalty of equivalent amount on the appellant. On appeal, the Commissioner (Appeals) upheld the original order and rejected the appeal. Against the said order, the appellant filed this appeal. 2. The learned Counsel for the appellant submitted that the exemption granted by the Sales Tax Department is to the extent of tax already paid on inputs used in the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value for excise purpose. He also made submission regarding the eligibility of cum duty value in case of allowing abatement only to the extent of actual payment of sales tax. 4. The learned AR on the other hand strongly contested the submissions made by the appellants. He relied on the decision of Hon ble Supreme Court in CCE, Jaipur - II vs. Super Synotex (India) Ltd. (supra). He submitted that the appellants in the present case also were availing an incentive scheme in terms of local sales tax law. The Hon ble Supreme Court categorically held that unless the sales tax is actually paid to the Government, no benefit towards Excise duty can be given under the concept of transaction value under Section 4 (3) (d). Any amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the above-mentioned case is equally applicable to the facts of the present case. The legal position that emerges is that if the assessee charged and collected amount towards sales tax but not paid the said full amount to the State, the amount retained under whatever name shall not be eligible for exclusion in terms of Section 4 (3) (d). 6. The demand was contested on the ground of time bar also. We find that the actual quantum of abatement available in case the assessee availing incentive schemes under sales tax has been a subject matter of interpretation and dispute till the law is laid down by the Hon ble Supreme Court in CCE, Jaipur - II vs. Super Synotex (India) Ltd. (supra). As contended by the appellant there were ..... X X X X Extracts X X X X X X X X Extracts X X X X
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