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TMI Blog2019 (1) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT liability for the subsequent period. The appellant herein had opted for remission of tax scheme un4er which a portion of the VAT paid was remitted back to the appellant. It becomes clear that when the sales tax/ VAT is payable at the time of removal, in that case, in terms of Section 4D of Central Excise Act, the same is not includable in transaction value. Remission in the nature of subsidy - additional consideration or not? - Held that:- In the present case, the remission is in the nature of subsidy which the appellant was receiving from the State Government in the form of VAT 37B Challans and not from the buyers of the appellant. The said remission was not only as good as cash but can also not be considered as an additional con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise duty on the amount of sales-tax collected from the buyers and retained by them to the extent of sales-tax liability being discharged through VAT 37-B Challans. It was alleged that the same has not actually paid by the appellant to State Exchequer with intent to evade the payment of duty for the period from Financial Year 2014-15 to the Financial Year 2015-16. Resultantly, a show cause notice No. 595 dated 16.03.2017 was served upon the appellant proposing the recovery of Central Excise duty amounting to ₹ 69,149/- alongwith the interest at appropriate rate in accordance of section 11AA of the Act, 1944 and the penalty under Section 11AC of the Act. The said proposal was confirmed vide the order of Assistant Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies below have wrongly declined the amount deposited towards payment of VAT and CST liability through VAT 37 -B challan as a payment of excise duty and has wrongly held the employment subsidy under RIPS, 2010, the utilization thereof as the amount of VAT retained. Order is accordingly prayed to be set aside. 4. Ld. D.R. on the other hand has justified the order. Submitting that the subsidy amounts in the value of the goods cleared by the appellants and demand of differential duty has rightly been included in the assessable value. It is impressed upon that the decision of Hon'ble Apex Court in CCE vs. Maruti Suzuki India Ltd. - 2013 (207) ELT 625 (SC) has rightly been applied were the Hon'ble Apex Court has clearly laid down tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for remission of tax scheme un4er which a portion of the VAT paid was remitted back to the appellant. It becomes clear that when the sales tax/ VAT is payable at the time of removal, in that case, in terms of Section 4D of Central Excise Act, the same is not includable in transaction value. Tribunal Mumbai in the case of CCE, Mumbai Vs. M/s Welspun Corporation Ltd. 2017 TIOL 1287 (Tri. - Mum.) has held that once the Sales Tax Department has assessed the sales tax as paid, the Central Excise Department cannot contend that since the State Government has remitted the amount back to the appellants as incentive, sales tax was not paid by them. After the assessment by the Sales Tax Department for sales tax to have been paid, condition of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 7.1 In terms of the aforesaid definition, it is clear that the transaction value includes all the payments made by the buyer to the assessee. However, in the instant case, the subsidy has been paid to assessee by the State Government. Only the mode of payment is by way of crediting the sales tax head under VAT challan in favour of the appellant. Thus, it could not be said that the amount is in the nature of additional consideration. 8. We also draw our support from the case Shree Cement Ltd. Vs. C.C.E., Alwar 2018 (Vol-I) TMI 915-CESTAT-Mum wherein it was held that where assesses are required to remit the VAT recovered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been observed that no amount of Government Exchequer as far as the VAT was concerned, was retained by the appellant. No question of evasion of duty at all arises. As already discussed above, once sales tax stands paid as per the Sales Tax Department, the Central Excise Department cannot contend and allege a short levy on the ground that some amount thereof has been remitted back to the appellants. Thus, there appears no alleged suppression of facts nor even the mis-representation. The entire above discussion rather clarifies the misunderstanding on part of the Department about the relevant provisions specially the definition of transaction value, under Rule 4(3)(d) CEA. The appellant cannot be held liable for the said wrong on part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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