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2021 (7) TMI 1348 - AT - Central ExciseExtended period of limitation - Valuation of Central Excise duty - VAT amount retained by the assessee would be includible in assessable value or not - Sales Tax remission under the Assam Value Added Tax Act - HELD THAT:- The applicability of extended period of limitation has been decided subsequent to the outcome of the decision in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT]. It is found that the issue has been decided in detail by the Tribunal in the case of CCE & ST, RAIPUR VERSUS. M/S. JAYASWAL NECO INDUSTRIES LTD. [2015 (8) TMI 963 - CESTAT NEW DELHI] as relied upon by the Appellant, where it was 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. Since the issue is no longer res integra, there is no reason to take a contrary view. Moreover, it is found that taking note of the outcome of decision of Hon’ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT] which decided the valuation issue against the assessee, the SCN dated 04.06.2014 was issued soon thereafter to raise the impugned demand. Since there were Board Circulars wherein it was clarified that VAT amount retained by the assessee would not be liable to be included in the assessable value, which fact has also been noted by the Hon’ble High Court and the co-ordinate Benches of the Tribunal, the assessee cannot be faulted. The impugned demand cannot be sustained on the point of limitation and thus, set aside - Appeal allowed - decided in favor of appellant.
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