2018 (3) TMI 1225 - AT - Central Excise

Valuation - includibility - sales tax on SED - case of the department is that the element of sales tax which was not payable on SED were charged extra, the same is extra consideration, hence it is includible in the assessable value - Held that - it is obligation on the appellant to explain that refund appearing in the sales tax return does not pertain to the excess Sales Tax/VAT paid in case of sale of vehicle which was registered as taxi. For this reason the matter needs to be remanded to the adjudicating authority - appeal allowed by way of remand.

Summary

Issues:
1. Whether the appellant is liable to pay duty on the difference of Sales Tax for vehicles registered as taxis?
2. Whether the excess Sales Tax/VAT paid by the appellant on vehicles registered as taxis is legally admissible for deduction from the assessable value?

Analysis:

Issue 1:
The appellants, engaged in the manufacture and sale of motor vehicles, faced a demand of duty on the difference of Sales Tax due to the inclusion of Special Excise Duty (SED) in the sales tax calculation. The department contended that the appellant collected sales tax from customers on the total value, including SED, which was not legally payable. The Commissioner (Appeals) upheld the demand, leading to the appeal before the tribunal.

Issue 2:
The appellant argued that the excess Sales Tax/VAT paid, even on vehicles registered as taxis where SED was exempted, should be deductible from the assessable value as per Section 4. The tribunal found that the higher sales tax attributed to SED, though not legally payable, could be deducted if paid to the tax department. However, doubts arose due to the refund appearing in the Sales Tax/VAT return, indicating that the excess amount paid was refundable. The tribunal remanded the matter to the adjudicating authority for clarification on the refund and its relation to the excess Sales Tax/VAT paid on taxi-registered vehicles. The duty demand would not sustain if the appellant had not claimed a refund for the excess amount.

In conclusion, the tribunal allowed the appeals by remanding the matter to the adjudicating authority for further clarification on the refund issue, emphasizing the need for the appellant to justify that the refund in the Sales Tax/VAT return did not include the excess Sales Tax/VAT paid on taxi-registered vehicles.