TMI Blog2022 (4) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... remission under Assam Industries (Tax Exemption) Order, 2005 w.e.f. March 2011. As per terms of the above remission scheme the Appellant charged and collected 100% of the VAT payable from their buyers, retained 99% of the same and paid only 1% to the State Government. Department alleged that the as per Section 4(3)(d) of the Central Excise Act, 1944, the aforesaid amount of 99% of the VAT collected from buyers, which was not paid to the State Government is not excludible and should have formed part of Assessable Value for the purpose of payment of Central Excise duty. Extended period of limitation - HELD THAT:- On perusal of Circular No.1063/2/2018-CX dated 16.02.2018 and decision of the Hon ble Supreme Court in COMMISSIONER OF CENTRAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 7207 1920 and was clearing its finished goods on payment of appropriate duty of excise claiming Area Based Exemption under Notification No.20/2007-CE dated 25.04.2007 (as amended). That the Appellant had discharged the Assam VAT liability during the relevant period from March 2011 to March 2014 and October 2014 by utilizing the VAT remission allowed as subsidy by the Assam Government, pursuant to Assam Industries (Tax Exemption) Scheme, 2009. Show Cause Notices were issued invoking the extended period of limitation and demanding excise duty along with Cess on the amount Assam VAT adjusted by the Appellant against the VAT remission granted under Assam Industries (Tax Exemption) Scheme, 2009 on the contention that the Assam VAT collected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 248,398 124,199 12,792,491 Excise Appeal No.76006 of 2017 Period Amount of VAT Remission Amount of VAT Remission Central Excise duty Education Cess S. H. Education Cess Total March,2011 1,847,933 1,675,370 167,537 3,351 1,675 172,563 April, 2011 to February,2013 40,928,106 37,106,170 3,710,617 74,212 37,106 3,821,936 March,2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by limitation because the extended period of limitation as invoked is not at all sustainable in view of the conflicting judgements on the issue of different judicial forums. The Ld.Chartered Accountant draws support from the decision of Hon ble Supreme Court in the case of CCE vs. Kolay Gum Industries [2016 (335) ELT 581 (SC)] and that of Hon ble Punjab Haryana High Court in the case of Commissioner of Central Excise, Delhi-III Vs. Microtek Forgings [2016 (341) ELT 218 (P H)], which involve identical facts and was on the same issue. More so when the said decision of the Hon ble High Court has been accepted by the Department under item 12 of Part-II of CBEC Circular No.1063/2/2018- CX dated 16.02.2018. Accordingly, the Ld. Chartered Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Ld.Commissioner(Appeals) who rejected the Appeals. Now the Appellant has filed the present Appeals against the said Orders-in-Appeal. 8. The Ld.Chartered Accountant fairly admitted that the issue of inclusion of retained VAT amounts in the assessable value has been decided against the assessee by the Hon ble Supreme Court in the case of CCE Vs. Super Synotex (India) Ltd.(supra), however, he submitted that the demand resulting their such inclusion of VAT is required to be restricted to the normal time limit. The Central Board of Excise Customs has taken this view in its Circular No.1063/2/2018-CX dated 16.02.2018, relevant para of which is reproduced below:- 12. Decision of the Hon ble High Court of Punjab Haryana dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be restricted to the normal time limit. Accordingly, he submits that the impugned order may be modified to restrict the demand to the normal time limit. 10. In view of the decision of the Hon ble Supreme Court as well as Hon ble High Court, we conclude that the differential duty, if any, is to be held as payable only for the period falling within the normal time limit. The extended period of limitation will not be available to the Department to raise such demand. We direct the original Adjudication authority to re-quantity the demand within the normal time limit. In the facts and circumstances of these cases, we find no justification for imposition of penalty and therefore we set aside the penalties. 11. We modify the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
