2023 (12) TMI 1207

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.... order, the Ld. Commissioner (Appeals) held that the Commissioner (Appeals) has earlier passed another O-I-A dated 30.05.2016, wherein he has remanded the matter to the adjudicating authority for re calculation of duty and penalty. As per the O-I-A dated 30.05.2016, the adjudicating authority passed Order-in- Original dated 23.03.2017, wherein he has confirmed the demand of Rs.6,48,211/- and Rs.1,58,446/-. He also imposed a penalty of Rs. 6,48,211/- under Section 11AC for the period 2011-12 to 2013-14 (up to December 2013) and Rs.15,845/- under Section 11AC(1)(a) for the period January 2014 to December 2014. The Ld. Commissioner (Appeals) further held that the adjudicating authority has just complied with the directions of Commissioner (App....

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....ssessable value for the purpose of levy of Central Excise duty. Accordingly, he prayed for dismissing the appeal filed 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 dated 23.03.17 on the basis of the remand order passed by Commissioner (Appeals) vide O-I-A dated 30.05.2016. He has confirmed the demand of Rs. 6,48,211/- and Rs.1,58,446/-. He also imposed a penalty of Rs.6,48,211/- under Section 11AC for the period 2011-12 to 2013-14 (upto December 2013) and Rs.15,845/- under Section 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 ....

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....invoking the extended period. They also prayed for setting aside the penalties imposed. In their submissions, the Appellant stated that the entire issue was known to the department. The department was aware that they were availing the Scheme and retaining 99% of the VAT collected. Thus, they have not suppressed any information from the department. Accordingly, they contended that extended period not invocable in this case and penalty is also not imposable. 8. We find merit in the argument of the Appellant. The Appellant has not suppressed any information from the department. There were 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 l....

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....ply. Deciding the departmental appeal, High Court has held that CESTAT in its order has observed that under Circular dated 30.06.2000 CBEC had clarified that such amount retained by the assessee is not required to be added to the assessable value. This view was negated by Apex court in the above said orders. Since there was no clarity on the issue, the assessee cannot be said to be at fault, hence extended 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 and t....