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2023 (12) TMI 1104 - AT - Central ExciseValuation - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - extended period of limitation - penalty - HELD THAT:- The issue is no more res integra as the Hon’ble Supreme Court 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], has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon’ble Supreme Court, it is held that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty. Extended period of limitation - penalty - HELD THAT:- It is observed that there were decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, the appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944 - the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, the penalty imposed under Section 11AC not tenable - Further, Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon’ble Supreme Court, High Courts etc, wherein no review petition has been filed - In the said clarification, the order passes by the Hon’ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, the extended period not invocable in this case and for the same reason penalty under Section 11AC of the CEA, 1944 also not imposable. Appeal allowed in part.
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