2016 (11) TMI 182 - AT - Central Excise

Valuation (Central Excise) - Turnover tax - whether at the time of working out valuation of the goods, under the Central Excises and Salt Act, 1944, the turnover tax can be deducted? - Held that - the issue is no longer res integra in view of the judgments of the Hon ble Supreme Court in the case of Commissioner Vs. Sujata Textile Mills Ltd. 2005 (3) TMI 120 - SUPREME COURT OF INDIA where it was held that under Section 4(4)(d)(ii) of the Central Excises and Salt Act, 1944, the value is not to include the amount of duty of excise, sales tax and other taxes if any payable on goods. Under Section 18 of the Karnataka Sales Tax Act, 1957 a registered dealer has to pay a tax known as turnover tax and by virtue of sub-section (3) of Section 18 he is not permitted to pass on that tax to the customer. The question is whether at the time of working out valuation of the goods, under the Central Excises and Salt Act, 1944, the turnover tax can be deducted. To be remembered that at this stage it will not have been actually paid. Turnover tax need not be included in valuation - appeal dismissed - decided against Appellant-Revenue.

Summary

Issues:
Department's appeal against the Commissioner (Appeals) order upholding the Order-in-Original regarding abatements claimed on account of non-recoverable sales tax for excisable goods.

Analysis:
The appeal was filed by the department against the Commissioner (Appeals) order, which upheld the Order-in-Original allowing abatements claimed by the respondent, a manufacturer of excisable goods. The respondent filed a price list for goods clearance, claiming deductions including a discount on the turnover tax. The Deputy Commissioner Central Excise allowed the abatements on non-recoverable sales tax. The department, aggrieved by the Commissioner (Appeals) decision, filed an appeal, which led to the present case.

The department argued that the turnover tax should be treated as an overhead expense, not forming part of the price or invoice price of excisable goods. They contended that the turnover tax merges with other costs, reducing profit margins and not qualifying for deduction under Section 4. Additionally, they highlighted the provisions of Section 18(3) read with Section 6(b) of the Karnataka Sales Act, stating that turnover tax cannot be part of the price and hence should not be allowed as claimed.

Despite no representation from the respondent, the Tribunal considered the arguments and referred to judgments of the Hon'ble Supreme Court in Commissioner Vs. Sujata Textile Mills Ltd. and CCE, Belgaum Vs. Akay Cosmetics Pvt. Ltd. The Supreme Court held that certain taxes, including sales tax, are not to be included in the value of goods under relevant Acts. Specifically, under the Karnataka Sales Tax Act, a dealer cannot pass on turnover tax to customers. The Tribunal emphasized that turnover tax cannot be deducted when valuing goods under the Central Excises and Salt Act, as it is not actually paid at that stage.

Based on the Supreme Court's decisions, the Tribunal concluded that the department's appeal lacked merit. Therefore, the appeal was dismissed, and the Commissioner (Appeals) order upholding the Order-in-Original was affirmed.