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TMI Blog2024 (10) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive 1993 of the Government of Maharashtra - enabling retention of the 'value added tax (VAT)' from 1st May 1994 to 31st January 2005 to be repaid in five equal annual installments starting from 26th April 2015 - which came to be modified in December 2002 permitting such assessees to remit the 'net present value (NPV)' of the accumulated amount as full and satisfactory compliance with the dues, was enabled to retain for itself. The difference between the amount collected and the 'net present value (NAV)', computed with the date of schedule payments as benchmark, was considered by the jurisdictional central excise authorities to be liable to be included in the assessable value of goods cleared by them. 2. We have heard Learned Counsel for the appellant and Learned Authorized Representative. 3. According to Learned Counsel for the appellant, the issue stood covered by the decision of the Tribunal in Commissioner of Central Excise, Raigad v. Uttam Galva Steels Ltd [2016 (331) ELT 261 (Tri.-Mumbai)] which, in identical circumstances of dispute of another similarly situated automotive parts manufacturer, Rational Engineers Pvt Ltd v. Commissioner of Central Excise, Pune - I, was foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g by this Tribunal as recorded or discussed in the Hon'ble Supreme Court's judgment. It does not appear that the counsels for the various respondents in the case of Kinetic Engineering were present in the Hon'ble Supreme Court and did explain the differentiating aspect and after hearing them, the Hon'ble Supreme Court dismissed their pleas and passed the said judgment. We also note that the Hon'ble Supreme Court has not finally allowed the appeal of the Revenue but has set aside all the orders passed by the original authority as also the Tribunal and remanded the matter to this Tribunal to decide the issues keeping in view the principles laid down in the said order. In view of the above factual position, we are of the considered view that the issue involved in the present appeals is not decided by the Hon'ble Supreme Court in the case of Super Synotex. However, the principles laid down by the Hon'ble Supreme Court in the case of Super Synotex have to be taken into account while deciding the present set of appeals.' 6. Furthermore, in re Kinetic Engineering Ltd, it was held '5.5 A combined and harmonious reading of the above instructions make it more than abundantly clear that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have any impact or effect on the assessable value of the goods, which were cleared much earlier. A perusal of the table listed in the opening paragraph of this order clearly shows that the period of dispute involved was from 1992 to 2007-2008. In other words, the goods were cleared during this period. In all these cases, the sales tax liability applicable at the time of removal of the goods was deferred and the said liability was allowed to be discharged at the net present value of the deferred tax in terms of the changes in sales tax law introduced in November, 2002 in public interest. This change in the liability has nothing to do with the abatement towards sales tax permissible under the central excise law at the time of removal of the goods. All the board's instructions cited supra also clearly points to this fact. The provision for payment of NPV towards discharge of deferred sales tax liability was introduced in the Bombay Sales Tax Act only in 2002 subject to certain terms and conditions. The said provisions as can be seen in para 2.1 above clearly states that the premature payment in place of tax deferred by an amount equal to NPV of the deferred tax can be availed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, the citations relied upon by the Revenue also do not support the Revenue's case. In the Adhunik Detergents Ltd., case relied upon by the Revenue there was a sales tax exemption available and no sales tax was payable on the goods and, therefore, it was held that deduction as contemplated in Section 4(4)(d) (ii) would not be permissible. The Mewar Textile Mills case relied upon by the Revenue also deals with a case where sales tax exemption was granted. The Bata (India) case referred to by the Revenue dealt with a situation were the tax was not part of the price and, therefore, exclusion of tax was not permitted. In the case under consideration before us, there is no exemption from sales tax. Sales tax is liable to be paid on a deferred basis. An option has been given to the assessee to discharge the entire liability by paying a sum/amount equal to NPV of the deferred tax liability and on such payment the entire deferred tax liability is deemed to be discharged. Since the facts are totally distinct and distinguishable, the judgments relied upon by the Revenue have no relevance to the facts in hand and, therefore, the ratio of these judgments do not apply. 5.10 There are a few ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty to the extent of the reduced price." Again in the case of Shri Bhagwati SSK Ltd. v. CCE, Pune, reported in 2000 (115) E.L.T. 120 (Tri.) this Tribunal held that fluctuations in price of excisable goods subsequent to clearance of goods would not affect assessable value and liability of excise duty already accrued. In the case of Triveni Engineering & Industries v. CCE, Meerut, reported in 2002 (148) E.L.T. 1041 (Tri.-Del.), this Tribunal considered a case, where sugar was cleared at prices fixed by the Government for levy quota sugar and the prices were subsequently revised by the Government. In that case it was held that assessable value of sugar would be the price at which the sugar was cleared and subsequent revision of price by the Government was held as not an additional consideration so as to form a part of the price. An appeal by the Revenue before the Hon'ble Apex Court against the said decision was dismissed by the Hon'ble Apex Court in CCE v. Triveni Engineering & Industries, reported in 2009 (236) E.L.T. A58 (S.C.). A perusal of all the above judgments clearly indicate that the assessable value and the duty liability have to be determined at the time of the cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and the department is precluded from challenging the correctness of the circulars even on the basis that the same is inconsistent with the statutory provision. A similar view was held by the Hon'ble Apex Court in CCE v. Dhiren Chemicals - 2002 (143) E.L.T. 19 (S.C.). Similarly in the case of Commissioner of Customs, Calcutta & Others v. Indian Oil Corporation Ltd. & Anr. reported in 4 (2002) 2 SCC 1275 (S.C.) = 2004 (165) E.L.T. 257 (S.C.), it was held that the circulars issued by the Board will be binding on the departmental authorities to maintain uniformity in the levy of tax/duty throughout the country. The stand adopted by the Revenue before us is in complete disregard of the clarifications given by the C.B.E. & C. Neither is the Revenue able to show to us any contrary interpretation of the statute either by this Tribunal or by any higher Court. In view of this position, the arguments put forth by the Revenue have to be negated and rejected.' 7. In view of the decisions of the Tribunal, relating to the peculiarity of the scheme which was prevailed insofar as the impugned order is concerned, we set aside the demand and other detriments to allow the appeal.' 4. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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