TMI Blog2021 (7) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... O INDUSTRIES LTD. [ 2015 (8) TMI 963 - CESTAT NEW DELHI] as relied upon by the Appellant, where it was held that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 2009 to November 2011 which has been further upheld by the Order-in-Appeal dated 06.09.2017 which are impugned herein. 2. Briefly stated, the facts of the case are that the Appellant is engaged in the manufacture of Lamitubes on which applicable Central Excise duty is being paid. The Appellant is enjoying Sales Tax remission under the Assam Value Added Tax Act whereby, 99% of the Sales Tax / VAT collected from the buyers are retained and only 1% is deposited with the State Government treasury in compliance with the applicable State VAT laws and Rules made thereunder. Taking note of the Hon ble Supreme Court s decision dated 28.02.2014 in the case of CCE, Jaipur vs. Super Synotex (India) Ltd [2014 (301) ELT 273 (SC)], wherein it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X dated 16.2.2018 wherein it has been stated that the Board has accepted that extended period of limitation shall not be available to the Department in such cases. 6. We have carefully perused the appeal records and the decisions relied upon by the Appellant wherein the applicability of extended period of limitation has been decided subsequent to the outcome of the decision in the case of Super Synotex (Supra). We find that the issue has been decided in detail by the Tribunal in the case of Jayaswal Neco Industries (Supra) as relied upon by the Appellant, the relevant portion of the decision is reproduced below:- 6 . We have considered the submissions from both the sides and perused the records. On merits, the question as to whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Super Synotex (India) Ltd. (supra), which was subsequently reversed by the Apex Court vide judgment reported in 2014 (301) E.L.T. 273 (S.C.). In view of the Board s Circular and the judgments of the Tribunal, which were in favour of the appellant, it can be said that the appellant had acted under bona fide belief that VAT amount collected by them from the customers and retained was not includible in the assessable value and hence, in these circumstances, in view of the Apex Court judgment in the case of CCE v. Continental Foundation Joint Venture (supra), the longer limitation period would not be available and as such, the duty demand would have to be held as time barred. 7 . When as discussed above, the appellant have been held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be demanded from the respondent are set aside. Consequently, the penalties on the respondents are not imposable . 4. In the aforesaid para, Circular dated 30-6-2000 issued by Central Board of Excise and Customs (to be called as the Board ) providing that any amount of concession on sales tax retained by the assessee is not required to be added in the assessable value and an earlier order passed by the Tribunal in favour of the assessee has also been referred to. 5. Keeping in view the aforesaid facts, the assessee cannot be said to be at fault. Hence, extended period of limitation was not available. No substantial question of law arises. Identical decision has been passed by the Hon ble Punjab Haryana High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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