AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (12) TMI 89
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....ducts falling under Chapter 39 of the First Schedule to the Central Excise Tariff Act, 1985 (hereinafter referred to as the 'said goods). For the said purpose, the appellant has a factory at Bonda, Narengi, Guwahati. The appellant is duly registered in terms of the provisions of the Central Excise Act, 1944 (hereinafter referred to as 'the Act') and the Central Excise Rules, 2002 (hereinafter referred to as 'the Rules') for carrying out the manufacturing activity in the said factory. 1.2. The appellant was granted certificate of eligibility by the Assam State Government under the Industrial Policy of Assam, 2003 and the Assam Industries (Sales Tax Concession) Scheme, 1997 where under it was granted sales tax exemption in the form of remission under the Assam Value Added Tax Act, 2003 for a period of 7 years with effect from May 8, 2008 to May 7, 2015 for a maximum amount of Rs 64.55 lakhs. In terms of the said Eligibility Certificate, the appellant was permitted to avail remission to the extent of 99% of the Sales Tax/VAT payable. 2. The Assistant Commissioner of Central Excise, Guwahati, issued a Show Cause Notice on 26.05.2014, alleging non-inclusion of ....
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....al Excise [2003 (160) E.L.T. 859 (T)]; the said decision of the Tribunal in Super Synotex (supra) had also been followed by the Tribunal in various cases. It is submitted that the appellant has bona fide believed and proceeded on the premise that it was eligible for deduction of the entire VAT amount involved, which it had retained as per the remission scheme of the State Government, in determination of the "transaction value" and consequently, the assessable value of the subject excisable goods manufactured and cleared by them during the said period from the factory, basing on the decision of the Tribunal mentioned hereinabove as were in force during the material period. Accordingly, it is argued that it was not the settled position of law that the remitted amounts of sales tax/VAT were to be included in the transaction value of the said goods in terms of Section 4 of the Act, in view of the conflicting decisions being passed by the Tribunal and the Hon'ble Apex Court; thus, he contends that there is no basis to the allegations of fraud, suppression or wilful mis-statement with intent to evade payment of duty, on the part of the appellant. 3.1. He further pointed out that all f....
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....irmed demands and prayed for rejection of the instant appeal. 5. Heard both the sides and perused the documentary evidence available before us. 6. We find that the issue involved in the present appeal as regards includability of the sales tax concession retained by the assessee in the assessable value for the purpose of levy of central excise duty stands settled by the Hon'ble Supreme Court in the case of Commissioner of Central Excise v. Super Synotex (India) Ltd. [2014 (301) E.L.T. 273 (S.C.)], wherein it has been categorically held that unless the sales tax/VAT is actually paid to the concerned governments or statutory authorities, no benefit towards excise duty can be claimed under the concept of transaction value as envisaged under Section 4 of the Central Excise Act, 1944 and such, is not excludible. Hence, we find that on merits, the issue stands answered against the appellants. 7. We, however, find force in the submissions advanced by the appellant on the ground of limitation. We take note of the fact that during the relevant period under dispute, regular EA-2000 audits of the factory were carried out by the jurisdictional central excise authorities, apart from AG ....
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....his Tribunal in the case of Jalshakti Plastic Industries v. Commissioner, CGST &C.Ex., NER, Guwhati [(2023) 12 Centax 149 (Tri. - Cal.)], wherein the demand raised by invoking the extended period provisions under Section 11A(4) of the Act has been set aside. The relevant observations of the Tribunal in the said case read thus: - "11. In their submissions, the Appellant stated that their unit was audited for the period from January 2012 to March 2014, on 6-7-2014. During the course of audit, the total amount of VAT Remission retained by them was collected by the auditteam, from the documents submitted by them and the Central Excise duty payable thereon was worked out. Also, the entire issue was known to the department. They were granted eligibility certificate for availing the incentives under the Industrial Policy of Assam 2008 and for claiming the exemption of tax under Assam Industries (Tax Exemption) Scheme 2009. As per terms of the above remission scheme they were entitled to retain with it 99% of the VAT collected and pay only 1% to the State government. The department was aware that they were availing the Scheme and retaining 99% of the VAT collected. Thus, they have....
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....as also been included and it has been categorically stated that extended period not invocable in such cases. 15. 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 remission of 99% of AVAT is after collection of AVAT in the Invoice. There is no tampering of invoices. The Appellant has to charge full amount of AVAT and it cannot charge 1% in the invoices as per the provision of AVAT Act, 2003. The same was 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. Accordingly, penalty also not imposable in this case." 7.5. In view of the above discussion, we are of the opinion that extended period of limitation as provided under Section 11A(4) of the Central Exci....