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2019 (4) TMI 1645 - AT - Central ExciseValuation - deduction of VAT from Transaction value - Section 4 (3) (d) of the Central Excise Act, 1944 - HELD THAT - In the present case, the appellant in terms of the 2004 Scheme had deposited the entire amount of VAT collected. It is this amount that is used as a measure for granting financial assistance to be subsequently provided. In terms of Clause 6.2 of the 2004 Scheme, units with fixed investment between ₹ 1 crore to ₹ 10 crores are provided financial assistance equivalent to 75% of the sales tax paid. The Adjudicating Authority was not, therefore, correct in stating that the amount of VAT collected by the assessee was retained and not deposited in the Government account. The judgment of the Tribunal in M/S MAIHAR CEMENT VERSUS CCE ST JABALPUR 2018 (4) TMI 288 - CESTAT NEW DELHI and SHREE CEMENT LTD. SHREE JAIPUR CEMENT LTD. VERSUS CCE, ALWAR 2018 (1) TMI 915 - CESTAT NEW DELHI would, therefore, apply and the financial assistance granted to the appellant cannot be included in the Transaction value for payment of excise duty. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Recovery of short-paid central excise duty. 2. Inclusion of VAT subsidy in the transaction value for excise duty computation. 3. Applicability of the Supreme Court decision in CCE, Jaipur – II vs. Super Synotex (India) Ltd. 4. Interpretation of the Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004. Issue-wise Detailed Analysis: 1. Recovery of Short-paid Central Excise Duty: The appeal challenged the order dated 25 June 2018, which demanded recovery of ?2,26,10,255/- in short-paid central excise duty from the appellant under Section 11A (10) of the Central Excise Act, 1944, read with Section 174 of the Central GST Act, 2017, along with interest and penalty. The appellant, engaged in manufacturing woven sacks, had cleared goods by paying duty on the transaction value from 2009-2010 to 2016-2017. 2. Inclusion of VAT Subsidy in the Transaction Value for Excise Duty Computation: The appellant received financial assistance under the "Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004" (2004 Scheme), which provided fiscal incentives equivalent to 75% of the commercial tax and central sales tax paid. A show cause notice dated 14 March 2018, based on the Supreme Court decision in CCE, Jaipur – II vs. Super Synotex (India) Ltd., contended that VAT withheld and not paid or payable could not be deducted from the transaction value. The appellant argued that the transaction value should exclude the excise duty, sales tax, and other taxes actually paid or payable, and the subsidy received was an incentive, not a consideration for goods sold. 3. Applicability of the Supreme Court Decision in CCE, Jaipur – II vs. Super Synotex (India) Ltd.: The Commissioner relied on the Supreme Court decision in Super Synotex (India) Ltd., which stated that VAT not actually paid could not be deducted from the transaction value. However, the appellant cited Tribunal decisions in M/s Maihar Cement vs. CCE & ST, Jabalpur, and Shree Cement Ltd. vs. CCE, Alwar, which distinguished the Super Synotex case, noting that under the 2004 Scheme, the entire VAT collected was deposited with state authorities, unlike the scheme in Super Synotex where only 25% VAT was deposited. 4. Interpretation of the Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004: The Tribunal examined the 2004 Scheme's provisions, noting that financial assistance was based on the VAT paid and was deposited in the commercial tax account for subsequent tax payments. The Commissioner had incorrectly stated that the appellant retained the VAT collected without depositing it in the government account. The Tribunal found that under the 2004 Scheme, the entire VAT collected was deposited, and financial assistance was subsequently provided based on this deposit. Conclusion: The Tribunal concluded that the financial assistance granted under the 2004 Scheme could not be included in the transaction value for excise duty payment. The decisions in M/s Maihar Cement and Shree Cement Ltd., which dealt with similar schemes, supported this conclusion. Consequently, the impugned order dated 25 June 2018 was set aside, and the appeal was allowed.
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