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2015 (8) TMI 963 - AT - Central ExciseValuation - Short payment of excise duty - whether the VAT which was exempt and which the appellant have collected from the customers and retained in terms of a Scheme of the State Government, is to be included in the assessable value or not - Invocation of extended period of limitation - Held that:- appellant during the period of dispute were liable to pay duty on the assessable value including amount of VAT collected by them from their customers and retained by them and since the VAT amount was not included in the assessable value, there has been short payment of duty. However, the duty demand for the 2006-07 period has been issued only on 28.4.2011 by invoking extended period of five years under proviso to Section 11 A(1) and this demand would survive only if it can be proved that the appellant had not acted under bona fide belief or that they had committed fraud or wilful misstatement or suppression of facts with intent to evade payment of duty. However, we find that during the period of dispute, the Board s Circular No.378/11/98-CX dated 12.3.98 and No.671/62/2000-CX dated 9.10.2002 were in favour of the appellant, as these circulars clarified that sales tax/VAT collected by an assessee but retained and not paid to the Government is not includible in the assessable value. - appellant had acted under bona fide belief that VAT amount collected by them from the customers and retained was not includible in the assessable value and hence, in these circumstances, in view of the Apex Court judgement in the case of CCE, Vs. Continental Foundation Joint Venture (2007 (8) TMI 11 - SUPREME COURT OF INDIA), the longer limitation period would not be available and as such, the duty demand would have to be held as time barred. - Decision in the case of Super Synotex (India) Ltd. (2014 (3) TMI 42 - SUPREME COURT) followed - Decided against Revenue.
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