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2023 (12) TMI 1207 - AT - Central ExciseCalculation of Excise duty - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - suppression of facts or not - extended period of limitation - penalty - HELD THAT:- The Appellant has not suppressed any information from the department. 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, it is observed that the appellant cannot be faulted for not including the same in the assessable value. As there is no evidence of suppression of facts available on record, it is held that the demand confirmed by invoking the extended period is liable to be set aside. In the present case, it is observed that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained are reflected in the audited Profit & Loss account and balance sheet of the impugned periods. Therefore, we hold that extended period of limitation as provided under section 11A(4) of the Central Excise Act, 1944 cannot be invoked for recovery of the short paid duties. The Circular issued by the Board also supports this view. Following the above Circular issued by the Board, the extended period cannot be invoked in this case to demand duty. Accordingly, penalty also not imposable in this case. The appeal is disposed by way of remand for calculating the duty, payable for the normal period of limitation, with consequential relief, if any, as per law.
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