TMI Blog2023 (12) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... assessable value for the purpose of levy of Central Excise duty. By relying on the above decision of the Hon ble Supreme Court, we hold that the sales tax concession retained by the Appellant is required to be added in the assessable value for the purpose of levy of Central Excise duty. Since the Appellant has not collected the duty separately from the customers, the amount collected is to be treated as inclusive of duty - the demand for the normal period is to be computed by taking the amount collected as cum-duty. Penalty - HELD THAT:- The appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and raised by invoking the extended period. However, he imposed penalty of Rs. 19,75,083/- under Section 11AC of the CEA, 1944. He appropriated the pre deposit of Rs.4,90,325/- paid by the Appellant, against the confirmed demand. 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 assesses is required to be added in the assessable value for the purpose of levy of Central Excise duty. However, Board has issued Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the Appellant. 4. Heard both sides and perused the appeal records. 5. We observe that the adjudicating authority has passed the Order-in- Original 20.03.2019 wherein he confirmed the demand of Rs.19,75,083/- including Education Cess and SHE Cess along with interest, for the normal period of limitation and dropped the demand raised by invoking the extended period. In their submission, the Appellant submits that they agree for the payment of duty for the normal period of limitation. However, the amount collected is to be considered as cum-duty for determining the duty payable under the normal period of limitation. They also prayed for setting aside the penalties imposed. 6. We observe that the issue involved in the present ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the appellant cannot be faulted for not including the same in the assessable value. In the impugned order, the adjudicating authority while agreeing that extended period not invocable in this case, imposed penalty equal to the duty confirmed under Section 11AC of the CEA, 1944. We find that the adjudicating authority has not given any proper finding for imposing penalty under Section 11AC. Accordingly, we hold that the penalty imposed under Section 11AC not tenable. 9. Further, we observe that Board has issued Circular No. 1063/2/2018- CX dated 16.02.2018, clarifyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed period would not be available to raise the demand . 10. In the said clarification, the order passes by the Hon ble Supreme Court in the case of Super Synotex has also been included and it has been categorically stated that extended period not invocable in such cases. In the present case, we observe that the Adjudicating Authority has failed to show any positive act of suppression on the part of the Appellant. The details of VAT collected and retained by the Appellant are reflected in the audited Profit Loss account and balance sheet of the impugned periods. Accordingly, by following the above Circular issued by the Board, we hold that extended period not invocable in this case and for the same reason penalty under Section 11AC of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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