2018 (9) TMI 1483 - AT - Central Excise

Valuation - inclusion of VAT amounts paid by the assessee using VAT 37B Challans in assessable value - whether subsidy amounts are required to be included in the assessable value of the goods manufactured by the appellants, in terms of Section 4 of the Central Excise Act? Held that - For the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to them in the form of subsidy in Challan 37 B. Such Challans are as good as cash but can be used only for payment of VAT in the subsequent period. In terms of the scheme of the Government of Rajasthan payment of VAT using such Challan are considered legal payments of tax - Revenue is not correct in taking the view that VAT liability discharged by utilizing such subsidy challans cannot be taken as VAT actually paid. There is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Interpretation of investment promotion schemes under Rajasthan Government for new enterprises; Treatment of VAT subsidy received by appellants in form 37B for subsequent periods; Inclusion of subsidy amounts in assessable value for goods cleared by appellants; Applicability of Section 4 of the Central Excise Act, 1944 on VAT payments using 37B Challans.

Analysis:
The case involved an appeal against the Order-in-Appeal passed by the Commissioner (Appeals), Central Excise & CGST, Jaipur, concerning the treatment of subsidies received by the appellants under various schemes of the Rajasthan Government. The appellants, operating under the Rajasthan Investment Promotion Scheme, were required to deposit VAT/CST/SGST with the government and, in return, entitled to subsidies disbursed in form 37B, which could be used to discharge VAT liability for subsequent periods. The Revenue contended that VAT paid using subsidy in form 37B cannot be considered as actual payment for the purpose of Section 4 of the Central Excise Act, leading to demands for differential duty, interest, and penalties. The core issue was whether subsidy amounts should be included in the assessable value of goods manufactured by the appellants.

During the proceedings, the appellant's counsel argued that the Rajasthan Government's scheme required actual payment of VAT, not exemption, and thus, VAT paid using subsidy should be considered as actual payment. Referring to a Tribunal decision in a similar case, the appellant contended that deduction of such VAT paid should be allowed under Section 4(3)(d) of the Act. Conversely, the Department justified the impugned orders, citing a Supreme Court decision and asserting that the refunded VAT by the Rajasthan Government should be included in the assessable value.

After hearing both sides and examining the case details, the Tribunal noted that the appellants were obligated to discharge their VAT liability under the Rajasthan Government schemes, with a portion refunded as subsidy in form 37B for subsequent VAT payments. The Tribunal emphasized that such subsidy amounts, considered legal payments of tax under the scheme, should not be excluded from the transaction value. By referencing the Tribunal's decision in a similar case and concluding that there was no justification for including VAT amounts paid using 37B Challans in the assessable value, the Tribunal set aside the impugned order and allowed the appeal.

In conclusion, the Tribunal's analysis focused on the interpretation of the Rajasthan Government schemes, the treatment of VAT subsidies, the applicability of Section 4 of the Central Excise Act, and the distinction between actual VAT payment and subsidy utilization. The decision highlighted the importance of considering the specific scheme requirements and legal implications of subsidy utilization in determining the assessable value for excise duty purposes.