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TMI Blog2018 (4) TMI 1160X X X X Extracts X X X X X X X X Extracts X X X X ..... AT NEW DELHI] squarely applies to the present case, 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. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50816, 50819 & 50822 of 2017 - Final Order No. 51361-51363 /2018 - Dated:- 4-4-2018 - Hon ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member ( Technical ) Shri Amit Jain Shri Rahul Tangri, Advocates for the Appellants Shri R K Mishra, AR for the Respondent ORDER Per: V. Padmanabhan The present appeal is against order in original No. 98/16-17 dated 15.2.2017. The period of dispute is July, 2011 to December, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsels of the parties and have gone through the material available on record. 4. Shri Amit Jain, learned advocate submitted that the entire VAT/CST was paid by the appellant to the State Government as recovered from their customers. As per the MOU, subsidy amounts are subsequently sanctioned by the Commissioner of Industries and the same is credited directly into the account of the appellant. Learned advocate emphasized the fact that subsidy amounts were paid to them subsequently and cannot be said to be out of the VAT recovered from their customers. He also relied on various decisions where the Tribunal has taken a view that the subsidy amount is not includible in transaction value of the final product. In support, he relied on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsidy, which after sanction is paid directly to the bank account of the appellant. It is evident that the VAT/ CST paid by the appellant is credited into the State Exchequer. 8. We have gone through the case laws relied upon by the appellant and we find that Tribunal consistently is taking the view that subsidy amount cannot be included in the transaction value of the product for the purpose of payment of duty. In particular, in the case of Ultratech Cement Ltd. (supra) Tribunal has considered a similar issue pertaining to the Rajasthan State Government where subsidy was paid to the assessee by way of credit in the form VAT 37 B. In the present case, we find that subsidy is sanctioned and credited to the bank account of the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the sales tax/VAT is actually paid to the good, no benefit towards excise duty can be given in terms of Section 4(3)(d). However, we note that the Tribunal in the case of Welspun Corporation Ltd. (Supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assesse had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to the included in the transaction value. 9. In the present case we know 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, and numerous other conditions as brought out in Para 9 of the impugned Order-in-Appeal. 11. By following the decision of the Tribunal in the Welspun Corporation Ltd. case we conclude that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. 12. In the result, the impugned orders are set aside and the appeals are allowed. 9. We have also gone through carefully the observations of the Apex Court in the case of CCE Jaipur II vs. Super Synotex (India) Ltd. [2014 (301) ELT 273 (SC)] cited by Revenue and find that the same is not applicable to the present case. 10. In the result, impugned order is not sustainable and is set aside and appeals are allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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