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2020 (3) TMI 198 - AT - Central ExciseValuation - inclusion of additional amount which has been collected by the appellant from their customers as representing VAT but which has not been deposited as VAT forms an additional consideration for sale, in the assessable value - HELD THAT:- There are several schemes of State Governments in which, as an incentive, businesses are allowed to collect amounts as representing VAT/Sales Tax but not remit the amount to the State Government. The question is whether in such cases the amounts so retained form part of the assessable value for the purposes of Excise Duty. Since such matters were pending in various States all these appeals or at least many of them were disposed of by the Hon’ble Apex court who held that Excise Duty has to be paid on such amounts which are retained by the assessee. This judgment was not confined to any particular law of a particular state or a particular scheme but has laid down the law. Review Petitions filed against this judgment were also dismissed by the Hon’ble Apex Court. There is nothing on record to show that a larger Bench of Supreme Court has taken any contrary view - reliance can be placed 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]. We therefore, find this judgment is binding on us and leaves us with no option but to hold that the assessee in the present case is bound to pay Excise Duty on the amounts collected as representing VAT but which were not paid to the government under the scheme. Extended period of limitation - penalty - HELD THAT:- Such a suggestion preposterous considering that it is clearly on record that the Revenue is aware of modus operandi of the assessee. To allege fraud, collusion, willful misstatement or suppression of fact or violation of Act or rules with an intent to evade payment of duty and invoke extended period has no basis - the demand for extended period of limitation needs to be set aside - penalty also set aside. The demand for the normal period of limitation is upheld and the demand for extended period of limitation is set aside - amounts which have been collected by the appellant as VAT and retained must be taken as cum duty price and Excise Duty are calculated accordingly - appeal is remanded to the Adjudicating Authority for the limited purpose of re-computation of duty.
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