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TMI Blog2025 (4) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... 985. The appellant was issued with a Show Cause Notice dated 14.09.2015 proposing recovery of cenvat of Rs.8,64,773/- along with interest and penalty. It was alleged in the SCN that the Appellant have evaded payment of central excise duty of Rs.8,64,773/- during the period from October, 2010 to March, 2015 by way on non-inclusion of the amount of VAT/Sales Tax collected and retained by them in the assessable value in violation of Section 4 of the Central Excise Act, 1944. The said notice was adjudicated and the Ld. adjudicating authority, wherein he has confirmed the demands of Central excise duty along with interest and penalty demanded in the Notice. On appeal, the Ld. Commissioner (Appeals) upheld the demands vide the impugned Order-in-A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h subsidy cannot be taken as additional benefit being received by the appellant so as to add the value of remission to the Assessable Value, as has been erroneously done by the lower authorities. 3.2. In support of their contention, the appellant relied on the following case laws : (i) 2017 (358) E.L.T. 630 (Tri. - Mumbai) COMMISSIONER OF C. EX., MUMBAI-I Vs WELSPUN CORPORATION LTD. 2019 (366) E.L.T. 900 (Tri. - Del.) (ii) SHREE CEMENT LTD. Vs CCE Alwar 2019 (370) E.L.T. 970 (Tri. - Delhi.) SELECT POLY PRODUCTS PVT. LTD. Vs CCE Jaipur Excise Appeal No.76498 of 2016 3.3. The submission of the appellant is that in all these cases, it has been held that the VAT incentive is not includible in the Assessable Value. Accordingly, he prays the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts are not in dispute. The appellant was eligible for remission under the State VAT scheme. Therefore, while the appellant were charging 100% VAT on their customers, they were retaining 99% of the VAT and paying only the balance 1% VAT to the State Govt. There is nothing on record that this 99% was required to be paid subsequently in instalments. Thus, it gets clarified that this amount is simply retained by the appellant. 6.1. We observe that this very issue was considered by the Hon'ble Supreme Court in the cited case of Commnr. Of Central Excise, Jaipur vs M/S. Super Synotex (India) Ltd. & Ors - 2014 (301) ELT 273 (SC)wherein it has been held as under : "4. The Commissioner of Excise repelled the stand of the assessee, interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statute book." 6.2. We find that the issue had reached the Apex Court, which has held that the retained portion of VAT is required to be treated as additional consideration and hence the same is to be added to the Assessable Value. 7. On going through the case law of Jalshakti Plastics Industrries VS Com (Appeals) CGST & Central Excise, vide Final Order No.76330/2023 dated 09.08.2023, we find that on identical issue, this Bench has held as under : "9. We observe that the issue is no more res integra as the Hon'ble Supreme Court in the case of Super Synotex (India) Ltd.Vs CCE, Jaipur reported in 2014 (301) ELT273, has held that the sales tax concession retained by the assesses is required to be added in the assessable value for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the same in the assessable value." 11. Accordingly, we set aside the confirmed duty for the extended period. We hold that the appellant is required to pay the differential Excise Duty for the normal period along with interest. However, considering the factual details of the case, we set aside all the penalties. 12. The appellant submitted that they have made payment of an amount of Rs.88,935/- vide epayment Challan No. 02134 and No.02149 and 02122 all dated 05.11.2015, being the duty on the amount of vat remission remitted by them for the period from March, 2014 to March, 2015 and enclosed the copies of the aforementioned e-payment challans to their reply dated 05.11.2015 to the impugned SCN. However, there is no mention about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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