M/s. Nissan Motors India Pvt. Ltd. Versus Commissioner of GST & Central Excise Chennai Outer
Central Excise
2018 (11) TMI 350 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 1-11-2018
Appeal No. E/41903/2018 – Final Order No. 42750/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial)
Shri Rajaram, Consultant for the Appellant
Shri L. Nandakumar, AC (AR) for the Respondent
ORDER
Brief facts are that the appellants are engaged in manufacture of Nissan and Renault brand of cars. During the course of investigations conducted by DGCEI, it was found that there was difference in the assessable value adopted by the appellant when cars were cleared from its factory premises and the final sale price adopted by Renault India Pvt. Ltd. to the dealer. The appellants were in the practice of paying excise duty on the price adopted by RIPL to dealers. Thereafter, the appellant took an exercise of finding out the highest dealer price cleared from their factory to
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at this is the highest price. In fact, on intimation by the department, the appellant itself had undertaken the exercise of verifying the difference in the price for clearances made to the different dealers. On such verification, it was found that there was an excess payment of Rs. 10,06,683/- and shortage of Rs. 20,94,086/-. The appellant in their letter dated 29.3.2016 issued to the Assistant Director of DGCEI had given the details of such difference of value adopted for discharging the central excise duty. In the order in original, the adjudicating authority has noted the reply filed by the appellant with regard to the excess payment also. It is thus argued by him that the appellant had no intention to evade payment of duty by suppression of facts. The shortage of payment was only due to the error in calculating the assessable value. The same has been rectified immediately on being pointed out by the department. He relied upon the decision of the Tribunal in the case of Chennai Petr
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the excise of reconciling the actual excise duty payment. During the reconciliation for the period FY 2010-11 and 2011-12, the following two scenarios have emerged:-
Scenario 1: Where the assessable value is higher than the RIPL Net Dealer Price i.e. Basic Price after excluding excise duty and sales tax and net discounts (i.e.. Total discount passed on to the dealer after excluding excise component included in such discounts). This results in higher / excess excise duty payment by NMIPL which is not actually due to Government.
Scenario 2: Where assessable value adopted by NMIPL is lesser than RIPL Net Dealer Price. This results in lower excise duty payment by NMIPL.
On our analysis, the major reason for the above variation (i.e. both scenarios 1 and 2) is on account of the following:-
RIPL has maintained Delhi Dealer Price as the basis for calculating excise duty as the same was highest, whereas some of the cases, it was lower and hence resulted in lower excise duty payment by NMIP
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und claim for this amount since the same was hit by limitation. Whenever they had paid excess duty for the previous period, they have filed refund claim and this is known to the department also. Taking into consideration the fact that the appellants have discharged excess duty during the impugned period and also the fact that the department has quantified the figure on the basis of the exercise undertaken by the appellant themselves for confirming the demand, I am of the view that the ingredients necessary for imposing penalty under section 11AC is not attracted in the present case. There is nothing to establish that the appellants have suppressed facts with intent to evade payment of duty. The scenario that short-payment of duty had occurred was only because the appellants were arriving the assessable value on the basis of the cars cleared to their Delhi dealers. Taking note of these facts and also relying upon the decisions cited by ld. consultant, I am of the view that the equal pen
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