2025-VIL-648-CESTAT-KOL-CE
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CENTRAL EXCISE CESTAT Cases

Central Excise - Excise duty, AVAT, Sales tax concession, Assessable value, Extended period of limitation, Penalty - The appellant is engaged in the manufacture of excisable goods and was authorized to avail remission of 99% of the AVAT (Assam Value Added Tax) collected/charged in the invoices under the Assam Industries (Tax Exemption) Scheme, 2009 – Department issued notice demanding central excise duty, education cess and secondary and higher education cess on the ground that the sales tax concession retained by the appellant is required to be added to the assessable value for the purpose of levy of central excise duty - Whether the sales tax concession retained by the appellant is required to be added to the assessable value for the purpose of levy of central excise duty - HELD - The Tribunal relied on the judgment of the Supreme Court in the case of Super Synotex (India) Ltd. Vs CCE, Jaipur, wherein it was held that the sales tax concession retained by the assessee is required to be added in the assessable value for the purpose of levy of central excise duty - The issue is no more res integra and the Supreme Court has clearly laid down the legal position that the amount of sales tax concession retained by the assessee has to be included in the assessable value for the purpose of levy of central excise duty - The Tribunal allowed the appeal in part, set aside the orders passed by the lower authorities, and held that the demand, if any, is sustainable only for the normal period along with interest. The demand of duty along with interest and penalty by invoking the extended period was set aside - Whether the extended period of limitation can be invoked to demand the short paid duties and whether penalty is imposable - HELD - The appellant has not suppressed any information from the department and the department was aware that the appellant was availing the remission scheme and retaining 99% of the AVAT collected. The Tribunal relied on the Board's Circular No. 1063/2/2018-CX dated 16.02.2018, which clarified that in cases where the Supreme Court or High Court has passed an order and the department has not filed any review petition, the extended period of limitation cannot be invoked - Since there was no positive act of suppression on the part of the appellant, the extended period of limitation under Section 11A(4) of the Central Excise Act, 1944 cannot be invoked, and consequently, the penalty is also not imposable.
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