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2013 (9) TMI 310 - CESTAT AHMEDABADValuation - inclusion of excess amount of sales tax recovered - Duty Demand Confirmed or Not - The appellant paid 21.6% towards sales tax and collected additional amount because of adoption of cum sales tax value of the petroleum products received by them to calculate sales tax amount recoverable under heading “other charges” -Held that:- it is seen that said definition, the exclusion of duty of Excise and other taxes actually paid or actually payable, would be applicable only in the cases where the taxes collected are payable but not paid. That is not the issue in the case before me. In view of the above, reliance placed by ld. SDR on the definition of transaction value will not carry the case of Revenue any further. Relying upon M/s. Baroda Electric Meters Ltd. v. Collector of Central Excise [1997 (7) TMI 126 - SUPREME COURT OF INDIA] and M/s. Gujarat Guardian Ltd. v. CCE, Surat [2005 (4) TMI 428 - CESTAT, MUMBAI]- Excess recovery of freight or of insurance amount collected from the buyers than the amount actually incurred was not required to be added in the assessable value - Even if the appellants have recovered excess amount from buyers by calculating the Sales Tax liability on the assessable value, they were not liable to pay any amount on that ground to Revenue, as such excess recovery was on account of non-manufacturing activities and have no nexus to the price of the manufactured goods - Any amount recovered/attributable to other expenses i.e. sales tax was not includible in the transaction value and excess recovery had to be considered as profit on non-manufacturing activities. Bar of Limitation - The issue was capable of two different interpretations and if the appellant have re-calculated the Sales Tax on the total which value including the value of Sales Tax, which calculations have come on higher side - the appellant cannot be held guilty of any suppression - The issue was definitely a bona fide dispute as regards interpretation of the relevant valuation provisions - Following M/s. Padmini Products v. CCE [1989 (8) TMI 80 - SUPREME COURT OF INDIA] and COLLECTOR OF CENTRAL EXCISE Versus CHEMPHAR DRUGS & LINIMENTS [1989 (2) TMI 116 - SUPREME COURT OF INDIA] - the demand was barred by limitation - The confirmation was required to be set aside along with setting aside of confirmation of demand. Intention of the Appellant - the appellants were showing the amount which has been collected by them in form of sales tax on the Invoice. - The appellant was a Public Sector Undertaking and cannot be said to have any mala fide intention to evade duty - This stand held in the case of M/s. Hindustan Petroleum Corpn. Ltd. v. CC, Kolkata [2000 (12) TMI 191 - CEGAT, KOLKATA] was fully applicable to them - The imposition of penalty upon them in any case was not justified. Difference of Opinion - Member (Technical) was not in consonance with the Member (Judicial) Therefore he delivered the separate Judgement with his Reasoning – As majority was into the favour of Assessee the relief was granted - Decided in favour of Assessee.
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