Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2016 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (9) TMI 533 - AT - Central ExciseValuation - whether or not the amounts collected by the appellants as Sales Tax from the customers but not paid to the State Sales Tax authorities should be included in the assessable value for the purpose of levy of Central Excise duty - appellants obtained an Entitlement Certificate dated 20.10.2003 by the Haryana VAT authorities - Appellant contended that they are eligible for full education of Sales Tax payable by them in terms of the Entitlement Certificate as they have discharged 50% of the deferred tax liability and the remaining 50 % is deemed to have been discharged in full and as such nothing has been retained by the appellants Held that:- the Sales Tax/VAT payable/paid to the Haryana State Government is only 50% which was eligible for education. The remaining amount is legally allowed to be retained by the appellants and is not payable to the State exchequer. In such scenario, we find that the impugned order is correct in upholding the inclusion of that portion of Sales Tax/VAT in the assessable value collected by the appellants but not paid or payable to the State Government followed by the various decision of Hon'ble Supreme Court. Invokation of extended period of limitation - Demand for the period April 2003 to June 2006 - SCN issued on 02.07.2007 - Held that:- it is found that there is nothing in the impugned order which examined the party’s submissions against longer period demand. We note that in the present case the correct valuation for Central Excise purpose is in dispute. The dispute is directly relatable to Sales Tax amount paid/payable by the appellants directly relatable to Sales Tax amount paid/payable by the appellants to the State authorities. The Sales Tax amounts collected were all reflected in the invoices issued to the clients. Out of this amount, the appellants retained 50 % based on a scheme announced by the State Government. In this factual matrix, we find that the allegation of fraudulent intent or suppression of fact against the appellants is not sustainable. It is apparent that the issue involved is one of legal interpretation and without a positive evidence for deliberate suppression of fact with intent to evade payment of Central Excise duty invoking the extended period for demand, is not legally sustainable. Accordingly, we hold that the appellants will be liable to different duty of Central Excise during the normal period of demand as confirmed by the lower authority. The demand for extended period as well as penalties are set aside. Cum duty value for calculation of differential excise duty - eligibility - no amount representing excise duty has been collected from the buyers on this differential amount - Held that:- the appellants pleaded that differential duty, if any, payable should be arrived at taking the additional consideration as inclusive of excise duty as they have not collected any excise duty on such value from the customers. We find that in view of the facts discussed in the order, the appellants are eligible for such calculation of duty liability. - Appeal disposed of
|