9911796707
TMI Blog2015 (8) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... ponge Iron, M.S. Billets, etc. chargeable to central excise duty. In course of audit of their central excise records for the year 2006-2007, it was found that during this period, they had availed VAT exemption vide Circular no.13/FA/(5)/98/584dated 28.09.99 issued by the Directorate of Industries, Madhya Pradesh and accordingly, while they were exempt from the VAT and were not required to pay the same to the Government 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 Rs. 2,43,96,177/- as VAT from the customers and had retained the same with them and had not paid to the Government of Chhattis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner (Appeals), while the appellant company has filed the appeal against the portion of the order upholding the duty and education cess demand along with interest the Revenue has appeal against the portion of the order setting aside the penalty under section 11AC. The appellant along with the appeal, have also filed a stay application. 2.Heard both the sides. Though the matter 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as having acted under bona fide belief and extended limitation period under proviso to Section 11 A(1) would not be applicable. He, therefore, pleaded that since in this case, the show cause notice for demand of short paid duty during 2006-07 had been issued on 28.4.2011, the same is time barred. With regard to the Revenues appeal, he pleaded that when the appellant company had acted in bona 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 Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and perused the records. On merits, the question as to whether the VAT which was exempt and which the appellant have collected from the customers and retained in terms of a Scheme of the State Government, is to be included in the assessable value or not, stands decided against the appellant by the Apex Courts judgement in the case of Super Synotex (India) Ltd. (supra). Therefore, we hold 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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