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TMI Blog2023 (8) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. 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 present case, we observe that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The remission of 99% of AVAT is after collection of AVAT in the Invoice. There is no tampering of invoices. The Appellant has to charge full amount of AVAT and it cannot charge 1% in the invoices as per the provision of AVAT Act, 2003. The same was reflected in the audited Profit Loss account and balance sheet of the impugned periods - extended period of limitation as provided under section 11A(4) of the Central Excise Act, 1944 cannot be invoked for recovery of the short paid duties. The Circular issued by the Board also supports this view. The demand, if any, is sustainable for the normal period, along with interest. The demand of duty along with interest and penalty by invoking the extended period is set aside - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 54 of the AVAT Act 2003. The Appellant first charged applicable Duty of Central Excise and, then charged applicable Assam VAT as per the provisions of AVAT Act 2003 in its invoices raised on its customers while removing the goods from its factory. Section 54 of AVAT Act 2003 is reproduced as under:- Exemptions o Certain Sales and Purchases : (1) Subject to such conditions as it may impose, the Government may, if it is necessary so to do in the public interest, by notification in the Official Gazette, exempt any sales by way of appropriate schemes or otherwise, in conformity with the provisions of this Act or purchases made to or by a class of dealers or persons specified in the said notification from payment of the whole or any part of any tax payable under the provisions of these Act and any notification issued under this section may be issued so as to be retrospective to any date not earlier than the date of commencement of the Act and such exemption shall take effect from the date of publication of the notification in the Official Gazette or such other earlier or later date as may be mentioned therein; Provided that the Government may withdraw such exemption at any times ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty. The Appellant was granted eligibility certificate for availing the incentives under the Industrial Policy of Assam 2008 and for claiming the exemption of tax under Assam Industries (Tax Exemption) Scheme 2009. As per terms of the above remission scheme, the Appellant is entitled to retain with it 99% of the VAT collected and pay only 1% to the State government. 9. We observe that the issue is no more res integra as the Hon ble Supreme Court in the case of Super Synotex (India) Ltd.Vs CCE, Jaipur reported in 2014 (301) ELT273, 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. The relevant portion of the decision is reproduced below: 21 . After the substitution of the old Section 4 of the Act by Act, 10 of 2000 as reproduced hereinabove, the Central Board of Excise and Customs, New Delhi, issued certain circulars and vide Circular No. 671/62/2002-CX, dated 9-10-2002 clarified the circular issued on 1-7-2002. In the said circular reference was made to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which does not have the effect of changing the rate of duty payable on the finished product. Therefore, since the set off scheme of sales tax does not 6. change the rate of sales tax payable/chargeable on the finished goods, the set off is not to be taken into account for calculating the amount of sales tax permissible as abatement for arriving at the assessable value u/s 4. In other words only that amount of sales tax will be permissible as deduction under Section 4 as is equal to the amount legally permissible under the local sales tax laws to be charged/billed from the customer/buyer. [Emphasis added] 22 . It is evincible from the language employed in the aforesaid circular that set off is to be taken into account for calculating the amount of sales tax permissible for arriving at the transaction value under Section 4 of the Act because the set off does not change the rate of sales tax payable/chargeable, but a lower amount is in fact paid due to set off of the sales tax paid on the input. Thus, if sales tax was not paid on the input, full amount is payable and has to be excluded for arriving at the transaction value . That is not the factual matrix in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained by the assessee. That has to be treated as the price of the goods under the basic fundamental conception of transaction value as substituted with effect from 1-7-2000. Therefore, the assessee is bound to pay the excise duty on the said sum after the amended provision had brought on the statute book. 24 . What is urged by the learned counsel for the assessee is that paragraphs 5 and 6 of the circular dated 9-10-2002 do protect them, as has been more clearly stated in paragraph 5. To elaborate, sales tax having been paid on the inputs/raw materials, that is excluded from the excise duty when price is computed. Eventually, the amount of tax paid is less than the amount of tax payable and hence, the concept of actually paid gets satisfied. Judged on this anvil the submission of the learned counsel for the assessee that it would get benefit of paragraph 6 of the circular, is unacceptable. The assessee can only get the benefit on the amount that has actually been paid. The circular does not take note of any kind of book adjustment and correctly so, because the dictionary clause has been amended. We may, at this stage, also clarify the position relating to circulars. Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the amount that has been paid on the raw material and inputs on which the sales tax/purchase tax has been paid. That being the position the adjudication by the Tribunal is not sustainable. Similarly the determination by the original adjudicating authority requiring the assessees to deposit or pay the whole amount and the consequential imposition of penalty also cannot be held to be defensible. Therefore, we allow the appeals in part, set aside the orders passed by the Tribunal as well as by the original adjudicating authority and remit the matters to the respective Tribunals to adjudicate as far as excise duty is concerned in accordance with the principles set out hereinabove. We further clarify that as far as imposition of penalty is concerned, it shall be dealt with in accordance with law governing the field. In any case, proceeding relating to the period prior to 1-7-2000 would stand closed and if any amount has been paid or deposited as per the direction of any authority in respect of the said period, shall be refunded. As far as the subsequent period is concerned, the Tribunal shall adjudicate as per the principles stated hereinbefore. 27 . Coming to the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot including the same in the assessable value. 13. Further, we observe that 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. The para 12 of the said Circular relevant to this appeal is reproduced below: Decision of the Hon ble High Court of Punjab Haryana dated 12.08.2016 in the case of Microtek Forgings CEANo. 32/2016 [2016- TIOL-1866-HC-P H-CX].12.1 Department has accepted the order of the Hon ble High Court where the Hon ble Court replying on the judgment of the Apex Court in the matters of 'Maruti Suzuki India Ltd. vs. CCE Delhi, 2014(307) ELT 625(SC)and Super Synotex (India) Ltd. vs. CCE Jaipur, 2014 (301) ELT 273dismissed the departmental appeal.12.2 In the case, CESTAT relying on Apex Court decision in the case of 'MarutiSuzuki India Ltd. vs. CCE Delhi, 2014(307) ELT 625(SC)and Super Synotex (India) Ltd. vs. CCE Jaipur, 2014 (301) ELT 273 had held that amount of sales tax concession retained by the respondent is required to be added in the assessable for levy of Central Excise Duty. However CESTAT held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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