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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 ..... rds dropping of the penalty the Revenue has not preferred any appeal before the Tribunal. 2. The Ld Chartered Accountants, submitted that the case law of India Cements rendered in 1989 [1990 (1 SCC 12], holding that Royalty is a Tax is being relied upon by the appellant, since this was the law during the period under dispute. 3. In respect of Stowing Excise Duty, the provisions of The Coal Mines (Conservation and Development) Act 1974 are being relied upon wherein Section 6 and 7 specify that the amount is being collected as "Duty of Excise". 4. In respect of Assam Land Tax, a separate legislation known as "The Assam Taxation (on specified lands) Act 1990 has been enacted and the tax is levied 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is excludible or includible in the present case also. The Ld AR submits, in view of this decision of the Supreme Court, the appellant has no case on merits. 10. In respect of the time-bar argument adduced by the appellant, the Ld AR submits that the Adjudicating authority has basically considered the fact the appellant has paid the entire differential duty and because of this, he has set aside the penalty. Dropping of the penalty on its own cannot be construed as dropping of the suppression charges against the appellant. Hence, he justifies the confirmed demand for both the normal and extended period. 11. Heard both the sides and perused the appeal papers and other submissions made. 12. Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 16. We have seen that the levy is being termed as "Duty of Excise" and also being treated as such. It is also not disputed that in the case of the goods in question, the Stowing Excise Duty is being paid by the 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. 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the period 01.03.201 10 28.02.2013 before issuance of Show Cause Notice. From the above, it is observed that the short payment /dispute is in the nature of interpretation of law. So, I am in favour to waive the penalty under Section 11AC of the Central Excise Act, 1944. Since, the noticee is a Maharatna Company of the Govt. of India. In this regard, I rely upon the case of M/S Uniflex Cables Ltd. Vs. Commissioner of Central Excise, Surat-1l [2011(271)E.L.T. 161(SC)] wherein it was held that no penalty could be and is liable to be imposed when issue involved is of interpretational nature. I also rely upon the case of M/S Indian Oil Corporation Ltd. Vs. Commissioner of Central Excise, Ahmedabad [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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising demand for the period 2008-2011, thus by invoking the longer period of limitation. Commissioner (Appeals) while disposing the appeal filed by the appellants has granted the benefit of penalty by setting aside the same on the finding that the adjudicating authority has not brought the fact of fraud, wilful misstatement, collusion or suppression of facts or contravention of any of the provision of Excise Act or Rules therein with intent to evade payment of duty in the impugned order. Such findings of the Commissioner (Appeals) have not been appealed against by the Revenue and as such, have attained finality. 7. If the appellate authority has held absence of any mala fide on the part of 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 Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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