TMI Blog2023 (12) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of levy of Central Excise duty. Thus, it is observed that the appellant cannot be faulted for not including the same in the assessable value. As there is no evidence of suppression of facts available on record, it is held that the demand confirmed by invoking the extended period is liable to be set aside. In the present case, it is observed that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained are reflected in the audited Profit Loss account and balance sheet of the impugned periods. Therefore, we hold that extended period of limitation as provided under section 11A(4) of the Central Excise Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 to December 2014. The Ld. Commissioner (Appeals) further held that the adjudicating authority has just complied with the directions of Commissioner (Appeals) vide OIA dated 30.05.2016 and there is no issue of wrong quantification. Since the Commissioner (Appeals) has already decided all the issues, filing of appeal again on all these issues is barred by res judicata. Aggrieved against the impugned order, the Appellant has filed this appeal. 2. In their grounds of appeal, the Appellant submits that the Hon ble Supreme Court has decided the issue in the matter of Super Synotex (India ) Ltd. Vs Commissioner of Central Excise, Jaipur II, reported in 2014 (301) ELT 273 wherein it has been held that the sales tax concession retained by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11AC(1)(a) for the period January 2014 to December 2014. On appeal, the Commissioner (Appeals) has dismissed the appeal as infructuous vide the impugned order-in-Appeal dated 14.09.2017. Thus, the demand confirmed in the Order-in-Original remains upheld. In their submission, the Appellant submits that they agree for the payment of duty for the normal period of limitation and prayed for setting aside the demand confirmed by invoking the extended period. They also prayed for setting aside the penalties imposed. However, we find that the adjudicating authority and the Appellate authority has not considered their request. The Appellate authority has rejected the appeal as infructuous, without going into their submissions. 6. We observe that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Tribunals that the sales tax concession retained by the assesses is not required to be added in the assessable value for the purpose of levy of Central Excise duty. Thus, we observe that the appellant cannot be faulted for not including the same in the assessable value. As there is no evidence of suppression of facts available on record, we hold that the demand confirmed by invoking the extended period is liable to be set aside. 9. Further, we observe that Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifying acceptance of some of the orders passed by the Hon ble Supreme Court, High Courts etc., wherein no review petition has been filed. The para 12 of the said Circular relevant to this appeal is rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority and the Appellate Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained are reflected in the audited Profit Loss account and balance sheet of the impugned periods. Therefore, we hold that extended period of limitation as provided under section 11A(4) of the Central Excise Act, 1944 cannot be invoked for recovery of the short paid duties. The Circular issued by the Board also supports this view. Following the above Circular issued by the Board, we hold that extended period cannot be invoked in this case to demand duty. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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