2019 (8) TMI 1544 - AT - Central Excise

Valuation - inclusion of additional consideration of sales tax collected by them from the buyers and retained by them to the extent of sales tax liability not actually paid to the State Exchequer in assessable value - Revenue was of the view that the VAT liability discharged by utilizing the investment subsidy granted in form 37B cannot be considered as VAT actually paid, for the purpose of Section 4 of the CEA, 1944 - HELD THAT - The matter is no longer res-integra as the issue has already been decided by this Tribunal in the case of M/S SHREE CEMENT LIMITED VERSUS CCG ST, JODHPUR 2018 (4) TMI 1161 - CESTAT NEW DELHI where it was held that There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. Demand set aside - appeal dismissed - decided against Revenue.

Summary

Issues:
Central excise duty on additional consideration of sales tax collected by the respondent/assessee and retained by them. Interpretation of Section 4(3)(d) of the Central Excise Act, 1944. Validity of the investment subsidy received in the form of VAT-37B entitlement certificate. Admissibility of VAT-37B challans for payment of VAT/CST. Appeal against the order-in-original dated 30/07/2018. Challenge to the order-in-appeal dated 20 December 2018.

Analysis:
The case involved the respondent/assessee engaged in the manufacture of MS Ingots and bars under Chapter 72 of the Central Excise Tariff Act, 1985. The Department alleged that the respondent had not paid central excise duty on the additional consideration of sales tax collected but retained by them. The Department argued that the retention of sales tax collected by the respondent, equivalent to VAT-37B challan, should have been included in the assessable value for the payment of central excise duty on finished goods, as per Section 4(3)(d) of the Central Excise Act, 1944.

Two show cause notices were issued to the respondent demanding central excise duty for the period March 2014 to March 2016. The respondent appealed the order-in-original dated 30/07/2018, and the Commissioner (Appeals) allowed the appeal based on a decision in the case of Shree Cement Limited versus Commissioner. The Department challenged the order-in-appeal, contending the same grounds as in the previous proceedings.

Upon review, the Tribunal found that the issue had already been decided in the case of Shree Cement Limited. The Tribunal referred to the decision in the Shree Cement case, highlighting the interpretation of the Investment Promotion Schemes of the Rajasthan Government regarding VAT subsidies. The Tribunal concluded that the VAT amounts paid using VAT-37B challans should not be included in the assessable value, following the precedent set in the Welspun Corporation Ltd. case.

Based on the similarity of facts with the previous cases and the legal correctness of the Commissioner (Appeals) decision, the Tribunal upheld the order, dismissing the Department's appeal. The judgment reiterated the principles established in previous cases regarding the treatment of VAT subsidies and their impact on the assessable value for central excise duty purposes.