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TMI Blog2019 (5) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decision of the Supreme Court in COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [ 2014 (3) TMI 42 - SUPREME COURT] has been relied upon. The nature of Scheme in the present Appeals are entirely different as Subsidy and not remission has been provided to the Appellants under the Scheme. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 50394, 50421, 50476, 50569, 50608, 50778 of 2019 - Final Order No. 50675-50680/2019 - Dated:- 30-4-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT And MR. V. PADMANABHAN, MEMBER (TECHNICAL) Ms. Anshika Aggarwal, Advocate, Ms. Sukriti Dass, Advocate, Shri Anirudh Samantray, Advocate, Shri Sube Singh Jangir, Authorised Signatory, Shri A.P. Kolte, Advocate for the Appellant Shri R.K. Mishra, Authorised Representative for the Respondent ORDER JUSTICE DILIP GUPTA : All these six Appeals seek the quashing of a common order dated 30 November, 2018 passed by the Commissioner (Appeals) and, therefore, are being decided together. 2. Show cause notices were issued to the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. For subsequent period that appellants also charged and collected full amount of sales tax but in that cases the appellants paid some part in cash and remaining by way of 37 B challans, thus in these cases the appellants retained some amount of sales tax as equal to the amount of said subsidy which was actually collected by them from the buyers. On this retained amount the appellant have not paid Central Excise Duty whereas in view of definition of transaction value as made effective w.e.f. 01.07.2000 the amount of sales tax actually paid is only deductable for the purpose of levy of Central Excise Duty. 14. In view of the above, it is clear that in whichever way the aforesaid mechanism or the adjustment is looked into, whether the appellants collects the sales tax and retains part of it directly or retains it by way of getting the amount in form of others (mode of deposit) and utilizing it for discharge of subsequent tax liability, the fact remains that the appellants have not actually paid the tax which was collected from the customers as sales tax to the extent of the amount adjusted towards their subsequent sales tax liability through 37B challans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amount of additional tax liabilities which accrue due to utilization of increased capacity/ increased volume of sales in quantity, created/ achieved after Modernization/ Expansion/ Diversification. C. The break-up of subsidy amount shall be as mentioned in Table-2 given below: TABLE 2 Type of Subsidy Amount of Subsidy 1. Investment Subsidy 30% of tax (es) which have become due and have been deposited by the enterprise 2. Employment Generation Subsidy 20% of tax (es) which have become due and have been deposited by the enterprise, subject to sub-clause E below. D. Investment Subsidy shall be allowed to all eligible enterprise on the basis of tax deposited by the enterprise subject to condition that the total amount of subsidy (Investment Subsidy + Employment Generation Subsidy) shall not exceed 50% of the amount of tax (es) which have become due and have been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of application, subject to availability of Budget provision. C. The said sanction in Form VAT-37B shall be forwarded to the concerned Treasury Officer for deposit of subsidy amount for the subsequent tax period(s) of the applicant by way of adjustment through treasury Book Transfer (BT). D. The Treasury Officer shall take necessary steps to pass adjustment order Book Transfer (BT) without any delay and shall forward two copies of duly adjusted Form VAT-37B to the Assistant Commissioner/ Commercial Taxes Officer. A copy of same shall also be forwarded to the office of the Accountant General. The Assistant Commissioner/ Commercial Taxes Officer shall forward a copy of Form VAT-37B to the applicant as a proof of disbursement of subsidy. E. Any order passed under this clause by the Assistant Commissioner/ Commercial Taxes Officer shall be subject to the provisions of the Rajasthan Value Added Tax Act, 2003, the Central Sales Tax Act, 1956, any Act related to SGST (whenever introduced) and rules made there under. The provisions of Recovery and Appeal in the said Acts shall mutatis mutandis apply for such orders. 9. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2003. In the Welspun Corporation Ltd. case, the assessee 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 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. In view of the above, Revenue is not correct in taking the view that VAT liability discharged by utilizing such subsidy challans cannot be taken as VAT actually paid. 10. It is pertinent to reproduce the observations of the Tribunal in the Welspun Corporation Ltd. case 5.1 The Respondent company opted for Remission of Tax Scheme and was thus eligible for the Capital subsidy in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X
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