M/S. Frigo Glass India Pvt. Ltd vs Commissioner Of Central Excise

[Arising out of Order-in-Original No. 28-29/SA/CCE/2013 dated 22.02.2013 passed by the Commissioner of Central Excise, Delhi III, Gurgaon].

For approval and signature:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Frigo Glass India Pvt. Ltd. Appellants

Vs.

Commissioner of Central Excise Respondent

Delhi III

Appearance:

Shri B L Narasimhan, Advocate for the Appellants

Shri Promod Kumar, Jt.CDR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Mr. B Ravichandran, Member (Technical)

Date of Hearing /decision: 19.08.2015

FINAL ORDER NO. 52627/2015-EX(DB)

Per Ashok Jindal:

The appellant is in appeal against the impugned order.

2. The appellant is manufacturer of excisable goods and registered with Central Excise department as well as Haryana Sales Tax Act 1972. During the course of audit it was observed that some amount were shown as capital receipts as sales tax subsidy from the Government of Haryana. Further, it was revealed that amount of Sales Tax has been collected from the buyers / customers and retained by the appellant as per the tax waiver scheme of the Government of Haryana. Therefore, it was alleged that the amount retained by the appellant should form part of income on account of sale of goods and required to be added in the assessable value of the goods sold by them in terms of section 4(3)(d) of Central Excise Act 1944. Therefore, the appellants are liable to pay duty on the amount of sales tax concession retained by them. The show cause notices were issued by invoking extended period of limitation to demand duty and also for imposition of penalty. The adjudicating authority confirmed the demand of duty on the amount of sales tax concession retained by the appellant along with interest and penalty were also imposed. The said orders were challenged by the appellant before the Ld. Commissioner (A) who affirmed the adjudication order. Aggrieved from the said order, the appellant is before us.

3. Heard the parties. Considered the submission.

4. The issue has been settled by the Honble Apex Court in the Case of Maruti Suzuki India Ltd. Vs. CCE Delhi-2014 (307) ELT 625 (SC) and Super Synotex (India) Ltd. Vs. CCE Jaipur-2014 (301) ELT 273 (SC) wherein Honble Apex Court has held that amount of sales tax concession retained by the appellant is required to be added in the assessable value. Therefore, issue is no more res integra. In these circumstances, we hold that the amount of sales tax concession retained by the appellant is to be added in the assessable value.

5. The appellant has also contested the issue on limitation. We find that during the relevant period there was CBEC Circular dated 30.06.2000 which provides that any amount of concession on sales tax retained by the appellant is not required to be added in the assessable value and there are certain judicial pronouncements of this Tribunal holding the same view in the case of Kinetic Engineering Ltd. (Supra) and Life Long India Pvt. Ltd. Vs. CCE Delhi-2013 (292) ELT 88 (Tri-Del). As there were view taken by the CBEC Circular and this Tribunal in favour of the appellant which has been negated by the Honble Apex Court in the decision cited before us today. In these circumstances, we hold that extended period of limitation is not invokable. Consequently, demand pertaining to the extended period of limitation which is sought to be demanded from the appellant are set aside. Consequently, the penalties on the appellant are not imposable.

With these observations, the appeal is disposed of by way of remand with the direction to the adjudicating authority to quantify the demand pertains to period within limitation which shall be paid by the appellant within 30 days of quantification along with interest for the intervening period.

6. With these terms appeal is disposed off.

(Dictated and pronounced in the open court )

( Ashok Jindal ) Member(Judicial)

( B Ravichandran )

Member(Technical)

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