2018 (5) TMI 1409 – CESTAT NEW DELHI – TMI – Valuation – inclusion of subsidy in assessable value – Department is of the view to include such subsidy amounts in the value of the goods cleared by the appellants and demanded the differential duty – Held that: – identical issue has came up before the Tribunal in the case of M/s. Shree Cement Ltd. & other vs. CCE, Alwar [2018 (1) TMI 915 – CESTAT NEW DELHI], 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. 50675 of 2018, Excise Appeal No. 50692 of 2018 – Final Order No. 51951-51952 /2018 – Dated:- 18-5-2018 – Hon ble Mr. Justice ( Dr. ) Satish Chandra, President And Hon ble Mr. V. Padmanabhan, Member ( Technical ) Shri G G Gupta, Advocate and Shri Mohit Gohlyan, CA for the Appellants Shri M R Sharma, AR for the Respondent ORDER Per: Justice ( Dr. ) Satish Chandra The prese
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leared by the appellants and demanded the differential duty. Being aggrieved, the appellants have filed the present appeals. 3. With this background, heard Shri G G Gupta, Shri Mohit Gohlyan and Shri M R Sharma, learned representatives for the parties and gone through the material available on record. 4. After hearing both sides and on perusal of material available on record, it appears that identical issue has came up before the Tribunal in the case of M/s. Shree Cement Ltd. & other vs. CCE, Alwar [ Final Order Nos. 50189- 50191/2018 dated 18.1.2018] as also in M/s. UltraTech Cement Ltd. vs. CCE, Jaipur I [Final Order No. 51129/2018 dated 28.3.2018] wherein it was observed that : 4. After hearing both sides and on perusal of record, it appears that identical issue has come up before the Tribunal in the case of Shree Cement Ltd. vs. CCE, Alwar (Final Order No. 50189 – 50191/2018 dt. 18.01.2018) where it was observed that: 7. We have heard both sides at length and perused the appeal
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s cannot be considered as actual payment of VAT. 8. Both sides have referred to the decision of the Apex Court in the case of Super Synotex India Ltd. In the above decision the Apex Court has categorically held that after 01/07/2000, unless 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 is given back to
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ompetent Authority was required to necessarily pass order for remission of such tax separately for each tax period. The remission of tax is thus directly related to capital investment in fixed asset. There was no option to claim exemption from payment of sales tax. The quantum of remission was based upon the investment made in the fixed assets. The condition of the remission amongst others included to remain in production, employment of certain percentage of persons in assessee unit, 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. 5. By following our earlier orders (supra), we set aside the impugned order and allow the appeals filed by the appe
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