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TMI Blog2025 (3) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. The Revenue cannot take a contorted and narrow view that only when the Duty of Excise is paid as Central Excise Duty, such exclusion is available. It is to be noted that the word used is "duty of excise" along with "sales tax" and "other taxes", which would clarify that if these are paid to State Govt or to any other agency also, the transaction value should exclude the same. Assam Land Tax - HELD THAT:- The very word used therein is Tax. As we have observed above, the Section 4 (3) (d), when speaking of Tax, speaks of Central Govt and State Govt Taxes. Hence, we hold that the Assam Land Tax is not required to be included while arriving at the Assessable Value. Accordingly, we set side the confirmed demand on account of the Assam Land Tax component. Time limitation - HELD THAT:- Admittedly the appellant is a reputed Public Sector Undertaking, having no necessity to indulge in any suppression with an intent to evade Excise Duty payment. They have been paying the Excise Duty on the AV arrived at by them as per their interpretation and filing their Returns. Hence, no case of suppression has been made out by the Revenue, so as to invoke the extended period provisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied under these provisions. 5. In respect of all these components, namely, Royalty, Stowing Excise Duty and Assam Land Tax, these fall within the exclusion given under Section 4(3) (d) of the Central Excise Act 1944. Therefore, it is prayed that on merits the impugned Order may be set aside and the appeal may be allowed. 6. Without prejudice to the above submissions on merits, the appellant takes objection to invocation of the extended period. They submit that the appellant has been adopting the Assessable Value by excluding the Royalty, Stowing Excise Duty and Assam Land Tax components and submitting their Monthly Returns right from 2011, when the Excise Duty was levied for the first time on coal. The Dept. is well aware about their practice. Further all the facts have been properly recorded in their books of account. Apart from this, the appellant is a reputed Public Sector Undertaking. All these facts prove that the appellant has neither indulged in any suppression, nor has any intent to evade the Excise Duty by way of suppression. 7. The Ld Chartered Accountant further points out that the Adjudicating authority himself has considered these facts, including the fact of payin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 4(3)(d) of the CEA stipulates that the "transaction value" of goods chargeable to excise duty would not include "the amount of duty of excise, sales tax and other taxes, actually paid or payable on such goods". This means that only these components are excludible for arriving at the Assessable Value. 13. The appellant has mainly argued on the ground that they were relying on the case of the 7 Member Supreme Court Bench decision of India Cements rendered in 1990, wherein it was held that the "Royalty" is a tax. Hence, the "Tax" component is excludible while arriving at the Assessable Value. But we find that this argument cannot be accepted for various reasons. In case of every classification / valuation dispute, it is always the issue of interpretation. Just because the interpretation of the assessee is based on certain case law, the Revenue cannot be made to stop in tracks and not issue the SCN, if their interpretation is different. All the issues of classification / valuation usually get finally clarified at Supreme Court level only. But it is for the parties [ the assessee / the Revenue], to keep the matter alive by litigating till this stage. In the present case, to justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Excise is paid as Central Excise Duty, such exclusion is available. It is to be noted that the word used is "duty of excise" along with "sales tax" and "other taxes", which would clarify that if these are paid to State Govt or to any other agency also, the transaction value should exclude the same. Considering these provisions, we set aside the confirmed demand in respect of the Stowing Excise Duty and allow the Appeals. 17. So far as the Assam Land Tax is concerned, the very word used therein is Tax. As we have observed above, the Section 4 (3) (d), when speaking of Tax, speaks of Central Govt and State Govt Taxes. Hence, we hold that the Assam Land Tax is not required to be included while arriving at the Assessable Value. Accordingly, we set side the confirmed demand on account of the Assam Land Tax component. 18. Thus, we hold that the appellant fails in the appeal in respect of Royalty component and succeeds in respect of Stowing Excise Duty and Assam Land Tax components on merits. 19. Now we turn to the arguments of the appellant towards their submissions on time-bar aspect of the demand. Admittedly the appellant is a reputed Public Sector Undertaking, having no necessity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bad [2013(291)E.L.T.449 (Tri-Admd.)] wherein it was held that the appellant being a Public Sector Undertaking, there cannot be mala fide for non-discharge of excise duty, if any and there cannot be allegation of intention to evade duty. It was also held in accordance of the decision of this Tribunal in the case of Markfed Refined Oil & Allied Indus, (supra), wherein the Tribunal held that "We are of the view that in the absence of any material showing any positive intention on the part of the appellant, which is a Government undertaking, to evade duty or fraud, collusion, etc., imposition of penalty was not justified." 21. The Section 11AC of the CEA 1944, in respect of the SCNs invoking the extended period demand, reads as under : (c) where any duty of excise has not been levied or paid or has been short- levied or short-paid or erroneously refunded, by reason of fraud or collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, the person who is liable to pay duty as determined under sub- section (10) of section 11A shall also be liable to pay a pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee for setting aside of penalty, same ingredient would apply for the purpose of limitation. In the absence of any suppression, misstatement or fraud, with a guilty mind extended period would not be available to the Revenue for raising the demand. As such, on this short issue itself, I set aside the impugned order and allow the appeal with consequential relief to the appellants 25. In the recent decision of Kolkata Bench in the case of Mahanadi Coalfields Vs CCE & ST Rourkela, vide Final Order No.75508/2025 dated 27.02.2025, has held as under : 7. For better appreciation, the observations made by the adjudicating authority is incorporated herein below : "In terms of the above Rule, it should be seen whether the ingredients such as fraud, collusion, willful mis-statement, suppression of fact or contravention of any of the provisions of the Rule, postulates a positive act to result in intention to evade payment of duty and mere failure to pay duty would not be sufficient to attract the penaty provisions under the aforesaid Rule. When we perused the case of the facts, it is evidently clear that is no allegation against the assessee and having committed any fraud or made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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