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2018 (12) TMI 1470 - AT - Central ExciseValuation - includibility - inclusion of automobile cess in their input value - demand of duty short paid - CENVAT Credit - extended period of limitation. Held that:- The issue is squarely covered by the decision of Apex Court in case of Daichi Karkaria [1999 (8) TMI 920 - SUPREME COURT OF INDIA], where it was held that In determining the cost of an excisable product covered by the Modvat scheme under Section 4(1)(b) of the Act read with Rule 6 of the Valuation Rules the excise duty paid on raw material also covered by the Modvat scheme is not to be included. The issue in the present case is not in respect of manner of collection of automobile cess but is in respect of the admissibility of Cenvat Credit on the said automobile cess. Automobile cess is a cess collected by the department of labour in the Ministry of Industries and is levied under Industries (development and Regulation), Act, 1951 read with Automobile Cess Rules, 1984 - Since automobile is not Cenvatable, in view of the decision of the Apex Court in case of Dai Ichi Karkaria, the same needs to be added for determining the assessable value of the finished goods cleared by the appellant. CENVAT Credit - automobile cess - Held that:- In terms of Rule 3 of the Credit Rules, a manufacturer is entitled to avail Cenvat credit only of excise duty as mentioned under the Excise Act, specified additional duties and also of education cess, national calamity contingency duty, etc. Cenvat credit is also available on all of the above duties paid during the time of import. However, the cess levied under various other acts, though collected as in manner similar to excise duty in the respective acts, is not in the list of duties eligible for Cenvat credit - None of the authorities cited by the appellant have stated in respect of admissibility of CENVAT Credit in respect of the automobile cess. Thus the submission of the appellant in this respect is not tenable. Time Limitation - Held that:- The issue of inclusion of the taxes and fees which were not Cenvatable has been decided by the Apex Court in case of Dai Ichi Karkaria in the year 1999. After the said decision, there can be no justification for non inclusion of the same in assessable value. Appellant cannot claim that they were under bonafide belief that the said automobile cess was not includable after the decision of the Apex Court - Further all these details were not made available to the department while filling the returns. Hence there was suppression of material facts from the revenue with the intention to evade, accordingly demand of duty short paid by invoking extended period of limitation cannot be faulted in the present case - thus, extended period of limitation has been correctly invoked for demanding the duty short paid. Demand of Interest and penalty - Held that:- Demand for interest is natural consequence of the delay in payment of the duty from the due date. Since the duty as determined under Section 11A(2) has been short paid on the due date, demand for interest under Section 11AB cannot be faulted with - Since we have held that necessary ingredients to invoke extended period of limitation are present in the case, penalty under Section 11AC read with rule 25 of the Central Excise Rules, 2002 justified - interest and penalty upheld. The benefit of proviso to Section 11AC extended to them for discharging the liabilities adjudged against them in respect of duties, interest and penalty. Appeal allowed in part.
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