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2016 (6) TMI 442 - AT - Central ExciseValuation - Correct quantum of exclusion towards sales tax from the transaction value for Central Excise purpose - allegation of suppression of facts - penalty imposed - Held that:- The principle laid down in CCE, Jaipur - II vs. Super Synotex (India) Ltd [2014 (3) TMI 42 - SUPREME COURT ] is equally applicable to the facts of the present case. The legal position that emerges is that if the assessee charged and collected amount towards sales tax but not paid the said full amount to the State, the amount retained under whatever name shall not be eligible for exclusion in terms of Section 4 (3) (d). On perusal of the original order and the impugned order, we find no reasoning to support the allegation of suppression of facts. The only reference made by the lower Authorities that the improper valuation was revealed during the course of audit and scrutiny of sales tax returns and as such it was concluded that the assessee had intention to evade Central Excise Duty. We find that considering the above factual background, the invocation of extended period in the present case is not legally sustainable. Accordingly, the demand of differential duty is to be restricted to the normal period which shall be payable with applicable interest by the appellants. On the same reasoning, we find imposition of penalty equal to the duty amount is also not sustainable. Since, the excise duty applicable on retained sales tax amount has not been collected by the assessee from the buyers, they are eligible for calculation of duty liability taking the differential value as cum duty value. The demand shall be restricted to the normal period and the duty will be calculated on the basis of cum duty valuation. The penalty imposed also is set aside.
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