TMI Blog2015 (8) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006-07 period has been issued only on 28.4.2011 by invoking extended period of five years under proviso to Section 11 A(1) and this demand would survive only if it can be proved that the appellant had not acted under bona fide belief or that they had committed fraud or wilful misstatement or suppression of facts with intent to evade payment of duty. However, we find that during the period of dispute, the Board s Circular No.378/11/98-CX dated 12.3.98 and No.671/62/2000-CX dated 9.10.2002 were in favour of the appellant, as these circulars clarified that sales tax/VAT collected by an assessee but retained and not paid to the Government is not includible in the assessable value. - appellant had acted under bona fide belief that VAT amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Chhattisgarh, they could collect the same from the buyers and retain the same. The Central Excise Audit Officers found that though during 2006-2007, the appellant company had collected an amount of ₹ 2,43,96,177/- as VAT from the customers and had retained the same with them and had not paid to the Government of Chhattisgarh still they had not included this amount in the assessable value of the goods, for the purpose of payment of central excise duty, while in terms of the provisions of Section 4(3)(d) of the Central Excise Act, 1944, transaction value excludes only the excise duty, sales tax, and other tax, if any, actually paid or actually payable on the goods. Accordingly, a show cause notice dated 28.4.2011 was issued to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was listed for hearing of the stay application, after hearing the matter for sometime, the bench was of the view that this matter can be taken up for final disposal. Accordingly, with the consent of both the sides, this matter was heard for final disposal. 3.Shri Krishna Mohan Menon, Advocate, ld. Counsel for the appellant, pleaded that so far as the question of excluding from the assessable value, the VAT collected by the appellant and retained by them, is concerned, this issue stands decided by the Apex Court against the appellant in its judgement in the case of CCE, Jaipur Vs. Super Synotex (India) Ltd. reported in 2014 (301) ELT 273 (SC). He, however, pleaded that though the issue on merits stands decided against the appellant, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide belief and there cannot be any element of fraud, wilful mis-statement, suppression of facts, or deliberate contravention of the provisions of Central Excise Act, 1944 or of the Rules made thereunder with intent to evade payment of duty, there is no question of imposition of penalty under Section 11 AC and as such, there is no merit in the Revenues appeal praying for imposition of penalty on the Appellant under Section 11 AC. 4.Shri Govind Dixit, ld. Departmental Representative, vehemently defended the portion of the impugned order upholding the duty demand along with interest and pleaded that the appellant company is guilty of suppressing the relevant facts from the department and hence, extended period has been correctly invoked. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the appellant during the period of dispute were liable to pay duty on the assessable value including amount of VAT collected by them from their customers and retained by them and since the VAT amount was not included in the assessable value, there has been short payment of duty. However, the duty demand for the 2006-07 period has been issued only on 28.4.2011 by invoking extended period of five years under proviso to Section 11 A(1) and this demand would survive only if it can be proved that the appellant had not acted under bona fide belief or that they had committed fraud or wilful misstatement or suppression of facts with intent to evade payment of duty. However, we find that during the period of dispute, the Boards Circular No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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