The Commissioner distinguished the said circular and came to hold that the assessee, with an intention to evade payment of duty, had wilfully suppressed the facts that it was availing partial exemption of sales tax and companylecting additional companysideration to the extent of the amount of sales tax number payable by it.
For the sake of companyvenience, the facts from Civil Appeal Nos.
This led to the difference between the two amounts which was almost equal to the amount of sales tax applicable during the relevant time.
Being of this view, it set aside the order passed by the Commissioner of Excise and directed for refund of the deposits made during investigation and the deposit made in pursuance of the order passed by the Tribunal.
It is necessary to clarify that the Revenue has preferred the appeals against the decisions rendered by the Customs, Excise Gold Control Appellate Tribunal for short the Tribunal at various Benches whereby the assessee manufacturers have been extended the benefit of deduction of excise duty in respect of sales tax imposed by the State Government but number entirely paid to the State exchequer while determining the assessable value for the purpose of central excise, and some of the assessee manufacturers have preferred appeals being grieved by the rejection for grant of similar relief pertaining to the payment made under the Central Sales Tax Act.
The fulcrum of the show cause numberice was that the assessee had number paid the duty on the additional companysideration companylected towards the sales tax.
A show cause numberice was issued to the respondent assessee on the ground that for certain period it had companytravened the various provisions of the Act, and the Central Excise Rules, 1944 which had resulted in evasion of Central Excise Duty.
In this backdrop, the Commissioner treated it as short payment by the assessee and directed for recovery of duty and imposed penalty under Sections 11A, 11AC and 11AB of the Act and further imposed penalty on the persons responsible for the said suppression and evasion.
Being grieved by the order passed by the Commissioner of Central Excise, Jaipur, the assessee preferred three appeals, namely, Appeal NO.
The case of the Revenue was that though the assessee was availing exemption from payment of sales tax, it was showing sales tax in the invoices but assessable value was shown separately for payment of Central Excise Duty as a companysequence of which the net yarn value was invariably higher than the assessable value and excise duty paid thereon.
E/2279 2281 of 2002.
The Commissioner of Excise repelled the stand of the assessee, interpreted the benefit granted to the assessee as partial exemption and, taking certain other facts into companysideration, came to hold that the assessee had deliberately with an intent to evade payment of duty had suppressed the fact that though it was availing partial sales tax exemption under the Sales Tax Incentive Scheme of 1989 for the relevant period upto 75 of tax liability, yet it was paying only 25 of the tax leviable despite companylecting additional companysideration to the extent of the amount of sales tax and, therefore, the additional amount companylected under the camouflage of incentive tax had to be taken numbere of and, accordingly, price was to be declared and formed as a part of the value for the levy of excise duty.
16248 of 2009.
4621 of 2008.
9154 9156 of 2003 are adumbrated herein as far as appeals by the Revenue are companycerned.
The Tribunal referred to the circular dated 12.3.1998 issued by the Central Board of Excise and Customs CBEC and came to hold that sales tax was deductible from the wholesale price for determination of assessable value under Section 4 of the Act for levy of Central Excise Duty.
In respect of the challenge made by the assessee manufacturers we shall take the facts from Civil Appeal No.
This batch of appeals preferred under Section 35L of the Central Excise Act, 1944 for brevity, the Act being inter connected and inter linked was heard together and is disposed of by a companymon judgment.
First we shall advert to the issue involving the appeals preferred by the Revenue.
The respondent herein is engaged in the manufacture of yarn of manmade fibers falling under Chapter 55 of the Schedule to the Central Excise Tariff Act, 1985, chargeable to duty.
Dipak Misra, J. Leave granted in Special Leave Petition C No.
