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2016 (10) TMI 1159 - AT - Central ExciseValuation - SKO (Superior Kerosene Oil) - includibility - reimbursements - impugned order has held that the amount reimbursed by the Oil Pool Account to the respondents and then in turn to Kochi Refineries Ltd. (KRL), the reimbursement component, cannot be added to the assessable value - whether differential amount (difference between subsidized price and total price paid for the goods namely SKO), received separately from Oil Pool Account by the respondents, M/s. IOC Ltd. and paid to the manufacturer of the subject goods, M/s. KRL, is part of the value of the goods under Section 4 of the Central Excise Act, 1944 and whether duty of Central Excise accordingly is chargeable for said differential amount or not? Held that: - the respondents, M/s. IOCL have replaced the manufacturer, and are the assessee for the purpose of Central Excise payment. When the respondents have taken the position of an assessee in place of the manufacturer, it is not an acceptable argument on behalf of the assessee that transaction value in their case is only the subsidized price, when it is on record and it is the fact that the assessee received additional consideration (differential price) from the Oil Pool Account for the ‘same goods’, the goods in questions and they paid the same to the manufacturer, who is M/s. Kochi Refineries Ltd. (KRL) - It is again made clear that the additional consideration/differential price being received from Oil Pool Account is to be treated as price-cum-duty paid on behalf of the buyer and it is being received by the assessee, who is M/s. IOCL, who in turn reimburse the manufacturer, KRL by its payment to KRL - the duty of Central Excise is chargeable for the additional consideration (reimbursement) received and paid to the manufacturer, KRL by the assessee IOCL. Extended period of limitation - Held that: - From the facts on record, it cannot be proved that the respondents wilfully suppressed the facts from the Department with intention to evade payment of duty of Central Excise though the Department in the show cause notice has invoked the extended period clause citing the proviso to Section 11A of the Central Excise Act, 1944. When there is no sufficient evidence on record to prove wilful suppression, misstatement, etc., with intention to evade payment of duty on the part of the respondents, the demand of the duty can be sustained only for the clearances made during the period of one year prior to the date of show cause notice - extended period cannot be invoked. For the period of one year, quantification of liability of duty along with interest and imposition of penalty as per law is also required to be decided, when the duty of Central Excise has not been paid on the differential price which includes the duty payable on the subject goods. For this limited purpose of re-quantification of duty and interest, and for imposition of penalty in case of the duty not paid during the period of one year, the matter is remanded to the original adjudicating authority - appeal allowed by way of remand.
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