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TMI Blog2025 (2) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... lants but not paid or payable to the State Government followed by the various decision of Hon'ble Supreme Court.'
Extended period of limitation - HELD THAT:- The learned Commissioner confirmed the demand by invoking the extended period, but the department had not established anything on record to show that the appellant has suppressed the material facts with intent to evade the payment of duty. Further, it is found that the issue involved in the present appeal relates to interpretation of the law and the Rules and finally, the Hon‟ble Apex Court in the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-III VERSUS M/S. MARUTI SUZUKI INDIA LTD. [2014 (9) TMI 229 - SUPREME COURT] has settled the position of law, therefore, invoking extended period is not justified in the present case.
Conclusion - i) The demand by invoking extended period of limitation is set aside. ii) The demand for the normal period is confirmed along with interest. iii) The appellant is entitled to benefit of cum-duty. iv) No penalty is imposable on the appellant.
Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... l subsidy from the state government and did not lose its character as „sales tax‟. He further submits that sales tax retained was permissible under the Entitlement Certificate issued by the state government. He also submits that the retained amount was a capital subsidy which did not constitute part of the transaction value as defined in Central Excise Act. He also submits that Entitlement Certificate had been issued under Rule 28-C (5)(a) of HGST Rules and under Rule 69 of HVAT Rules which specifically mentioned that the appellant was entitled to tax deferment. 4.3 The learned Counsel further submits that the impugned order has travelled beyond the show cause notice and the learned Commissioner has confirmed the demand on the ground which was not alleged in the show cause notice. 4.4 As regards the extended period of limitation, the learned Counsel submits that extended period cannot be invoked in the present case since the issue involves interpretational questions. He further submits that the extended period of limitation can be invoked under Section 11A(1) only when there is fraud or collusion or wilful mis-statement or suppression of facts or contravention of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Authorized Representative for the Revenue has filed the written submissions which have been taken on record. He further submits that the learned Commissioner has considered all the submissions of the appellant and vide the impugned order, has confirmed the demand on the retention of sales tax by invoking the extended period of limitation because the appellant has failed to disclose the retention of sales tax and thus, suppressed the material fact with intent to evade duty. He further submits that the identical issue, as involved in the present case, has been considered by two benches of the Tribunal in the cases of Honda Motorcycles & Scooters India P. Ltd vs. CCE, Delhi-III - 2017 (357) ELT 828 (Tri. - Chan.) and Denso Haryana Pvt Ltd vs. CCE, Delhi - 2017 (10) TMI 1028 CESTAT CHANDIGARH, wherein the Tribunal, after relying upon the decision of Hon‟ble Apex Court in the case of Commissioner vs. Maruti Suzuki India Ltd - 2014 (307) ELT 625 (SC), has held that retention amount is liable to be included in the transaction value for the computation of excise duty. Further, the learned Authorized Representative fairly concedes that in the aforesaid cases, the Tribunal has con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated earlier, the appellants chose to make half of the amount of deferred tax. While such payment will satisfy the full discharge of VAT in terms of deeming fiction as per Section 61 of the Haryana Value Added Tax Act, 2003, the applicability of such deeming concept to the provisions of Section 4 of the Central Excise Act, 1944 is the point in dispute. In other words, in view of the deeming fiction payment of, say Rs.50/- as VAT will be considered as full payment of Rs.100/-. The appellants' case is that Rs.100/- should be deducted to arrive at the value for Central Excise purpose. They are relying on the term 'Sales Tax Actually Payable' indicated in the definition of „Transaction Value' under Section 4(2)(d). Rs.100/- is actually payable VAT and as such eligible for exclusion. The Department's case is that Rs.50/- is the amount actually paid and eligible for exclusion. 6. First of all, we note that in the present case the concession extended to the appellants by the State Sales Tax authorities is by way of an exemption. The said exemption was converted into the scheme of deferring payment of tax upon introduction of Haryana Value Added Tax Act, 2003. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, the fact remains that the assessee retained with it 50% of Sales Tax collected from its customers and it was neither actually paid to the exchequer nor was it actually payable to the exchequer. In such situation, the Hon'ble Supreme Court observed that, the amount retained by the assessee is required to be added in the transaction value. 8. We also note that the Hon'ble Supreme Court in Commissioner of Central Excise, Jaipur vs. Super Synotex (India) Ltd. 2014 (301) E.L.T. 273 (SC), while dealing with a similar issue, held as below "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 the present case. The assessee in the present case has paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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" 9. The learned counsel for the appellants attempted to distinguish the above decisions of the Hon'ble Supreme Court by pleading that they are not applicable to the facts of the present case. He also relied on the decision of the Hon'ble Supreme Court in Purolator India Ltd (supra) to hold that the transaction value should be "for delivery at time and place of the removal". We find in that case the Hon'ble Supreme Court was dealing with the "cash discount" and not with deduction of Sales Tax/VAT from the price to arrive at the transaction value. It was observed in the said order that in Super Synotex (India) Ltd (supra), the Hon'ble Supreme Court was concerned with Sales Tax "not actually paid to the Government and hence held that 75% of Sales Tax retained by the assessee could not be deducted as only amounts payable to the State Government as Sales T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of various Circulars before/after the introduction of new provisions for valuation w. e. f. 1-7-2000 and also matter of decision by this Tribunal in various cases including Maruti Suzuki India Ltd. (supra). This last mentioned case was taken up on appeal by the Revenue and the Hon'ble Supreme Court set aside the order of the Tribunal. The Hon'ble Supreme Court also set aside the penalty on the respondents in the said case. In these circumstances, it is apparent that the issue involved is one of legal interpretation and without a positive evidence for deliberate suppression of fact with intent to evade payment of Central Excise duty invoking the extended period for demand, is not legally sustainable. Accordingly, we hold that the appellants will be liable to different duty of Central Excise during the normal period of demand as confirmed by the lower authority. The demand for extended period as well as penalties are set aside. The appellants pleaded that differential duty, if any, payable should be arrived at taking the additional consideration as inclusive of excise duty as they have not collected any excise duty on such value from the customers. We find that in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of above observations, the following order is passed: (a) the demands as per show cause notice 3.4.2008 are dropped which have already been dropped by the ld. Commissioner, (b) the demands by invoking the extended period of limitation as per show cause notice dated 4.5.2009 are set aside, (c) the demands within the normal period as per show cause notices dated 4.5.2009 and 7.5.2010 are confirmed, (d) the appellant is entitled for cum-duty benefit, (e) no penalty is imposable on the appellant" 8. Further, we find that the learned Commissioner confirmed the demand by invoking the extended period, but the department had not established anything on record to show that the appellant has suppressed the material facts with intent to evade the payment of duty. Further, we find that the issue involved in the present appeal relates to interpretation of the law and the Rules and finally, the Hon‟ble Apex Court in the case of Commissioner vs. Maruti Suzuki India Ltd (supra) has settled the position of law, therefore, invoking extended period is not justified in the present case. 9. Further, we find that the decisions relied upon by the appellant are not squarely applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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