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2024 (1) TMI 133 - CESTAT KOLKATAInvocation of extended period of limitation - penalty - includability of the sales tax concession retained by the Appellant in the assessable value for the purpose of levy of Central Excise duty - 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, 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 Appellant has agreed for the payment of duty for the normal period of limitation.. The Appellant has not suppressed any information from the department - As there is no evidence of suppression of facts available on record, we hold that the demand confirmed by invoking the extended period is liable to be set aside. Penalty - HELD THAT:- The Appellant submits that they have 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, 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 penalty imposed under Section 11AC not tenable. The Appellant is liable to pay duty for the normal period of limitation. The demand confirmed by invoking the extended period of limitation is set aside - penalty imposed under Section 11AC of the CEA, 1944 is set aside - 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. Appeal allowed in part and part matter on remand.
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