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2016 (6) TMI 442 - CESTAT NEW DELHI

2016 (6) TMI 442 - CESTAT NEW DELHI - 2016 (344) E.L.T. 607 (Tri. - Del.) - Valuation - Correct quantum of exclusion towards sales tax from the transaction value for Central Excise purpose - allegation of suppression of facts - penalty imposed - Held that:- The principle laid down in CCE, Jaipur - II vs. Super Synotex (India) Ltd [2014 (3) TMI 42 - SUPREME COURT ] is equally applicable to the facts of the present case. The legal position that emerges is that if the assessee charged and collected .....

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the assessee had intention to evade Central Excise Duty. We find that considering the above factual background, the invocation of extended period in the present case is not legally sustainable. Accordingly, the demand of differential duty is to be restricted to the normal period which shall be payable with applicable interest by the appellants. On the same reasoning, we find imposition of penalty equal to the duty amount is also not sustainable. Since, the excise duty applicable on retained sal .....

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the Petitioner : Shri V.K. Gupta, Advocate For the Respondent : Shri R.K. Grover, Authorized Representative (DR) ORDER PER. S.K. MOHANTY :- The appeal is against order dated 31/5/2007 of Commissioner (Appeals), Jaipur. The appellants are engaged in the manufacture of Cables and Conductors liable to Central Excise duty. In terms of scheme implemented by Government of Rajasthan the appellants were availing exemption from sales tax to the extent of tax paid on raw material used in manufacture of fi .....

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The Revenue alleged that claiming excess abatement in the name of sales tax resulted in under valuation of excisable goods. The proceedings initiated resulted in the confirmation of demand of ₹ 4,04,037/-. The Original Authority apart from confirming the differential duty, imposed penalty of equivalent amount on the appellant. On appeal, the Commissioner (Appeals) upheld the original order and rejected the appeal. Against the said order, the appellant filed this appeal. 2. The learned Coun .....

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ble to the Government . It is not proper to disallow the abatement of entire amount of turnover tax on the ground that the appellant had paid only lesser amount to the State Government. The learned Counsel also submitted to distinguish the appellants case from the facts of CCE, Jaipur - II vs. Super Synotex (India) Ltd. reported in 2014 (301) E.L.T. 273 (S.C.). He submitted that the Hon ble Supreme Court was dealing a matter of incentive scheme where the assessee was permitted to retain 75% of s .....

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ons in favour of the assessees in similar matters and, hence, the appellant cannot be accused of suppression or willful mis-statement in calculating the assessable value for excise purpose. He also made submission regarding the eligibility of cum duty value in case of allowing abatement only to the extent of actual payment of sales tax. 4. The learned AR on the other hand strongly contested the submissions made by the appellants. He relied on the decision of Hon ble Supreme Court in CCE, Jaipur .....

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ice. 5. We have heard both the sides and examined the appeal records. The short point for decision in this appeal is the correctness of the claim made by the appellant regarding the correct quantum of exclusion towards sales tax from the transaction value for Central Excise purpose. We find that the Hon ble Supreme Court in CCE, Jaipur - II vs. Super Synotex (India) Ltd. (supra) examined the scope of the abatement available under Section 4 (3) (d) and held that any amount collected towards sales .....

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x on the final product. We find that this submission is not factually or legally admissible. The Central excise valuation is being done for the final product and the sales tax actually payable or paid on such final product only can be given exclusion. The appellants argument as above is against the concept of transaction value in terms of Section 4. The principle laid down by the Hon ble Supreme Court in the above-mentioned case is equally applicable to the facts of the present case. The legal .....

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