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Aditya Polysacks Pvt. Ltd V/S Commissioner of Centre Excise & GST, Jaipur


Company & Directors' Information:- ADITYA LIMITED [Active] CIN = U45400DL2012PLC231460

Company & Directors' Information:- ADITYA AND COMPANY (INDIA) PRIVATE LIMITED [Active] CIN = U27107RJ2004PTC019073

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

    Excise Appeal No. 50733 of 2018 (Arising out of the Order-in-Appeal No. JAI-EXCUS-001-APP-615-2017 dated 12.1.2018 passed by Commissioner (Appeals), Central Excise, Customs, Jaipur (Rajasthan) and Final Order No. 51844/2018

    Decided On, 14 May 2018

    At, Customs Excise Service Tax Appellate Tribunal Principal Bench New Delhi

    By, THE HONORABLE JUSTICE: DR. SATISH CHANDRA (PRESIDENT)

    For Petitioner: Prashant Srivastav, Advocate And For Respondents: K. Poddar, A.R.



Judgment Text


1. The present appeal is arising out of Order-in-Appeal No. JAI-EXCUS-001-APP-615-2017 dated 12.1.2018.

2. Brief facts of the case are that the appellants have established their factories in the State of Rajasthan which were operating under the Rajasthan Investment Promotion Scheme as notified by the Government of Rajasthan. The objective of the scheme was to facilitate investment in the establishment of new enterprises under the various schemes of Rajasthan Government. The appellant was eligible for subsidies as per the various schemes applicable to the assessees and the appellant was required to deposit VAT/CST/SGST as per the applicable rate and in terms of the scheme notified, will be entitled to disbursement of subsidy by the appropriate authorities disbursement of subsidy by the appropriated authorities. The subsidy concern is sanctioned and disbursed in Form 37B and as such challans in the form VAT 37B can be utilized for discharge of the VAT liability of the appellant for subsequent period. The Revenue was of the view that VAT liability discharged by the utilization of the investment subsidy granted in Form 37B actually paid, for the purpose of Section 4 of the Central Excise Act. Accordingly, the Revenue proceeded to include such subsidy amounts in the value of the goods cleared by the appellants and demanded the difference of the duty. Being aggrieved, the appellants have filed the present appeals.

3. With this background, we heard the Shri Prashant Srivastava and Shri K. Poddar, learned representatives for the parties and gone through the material available on record.

4. After hearing both the parties and on perusal of material available on record, it appears that identical issue has came up before the Tribunal in a number of cases including M/s. Greenlam Industries Ltd. vs. CGST & CE, Alwar [Final Order No. 51427-51514/2018 dated 11.4.2018] wherein it was observed that:

4. After hearing both sides and on perusal of record, it appears that the identical issue has come up before the Tribunal in the case of Shree Cements Ltd. Vs. CCE, Alwar: 2018-TIOL-748-CESTAT-DEL where it was observed that:-

7. We have heard both sides at length and perused the appeal record. As out lined above, the appellants are covered by the Investment Promotion Schemes of the Rajasthan Government. In terms of the various schemes of the Rajasthan Government, the appellants are required to discharge their VAT liability by making payment of the same. Out of such VAT credited to the Government, a certain portion is disbursed back to them in the form of subsidies. Such disbursement happens in the form of VAT 37 B, challan which can be utilized in subsequent periods to discharge VAT liability. The crux of the dispute in the present case is whether such subsidy amounts are required to be included in the assessable value of the goods manufactured by the appellants, in terms of Section 4 of the Central Excise Act. As per the concept of transaction value outlined in Section 4, with effect from 01/07/2000, any sales tax/VAT actually paid can be deducted from the transaction value for payment of excise duty. Revenue has taken the view that payment of VAT using 37B Challans 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 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 of remission of Sales Tax subject to the conditions to be fulfilled.... The subsidy in the form of remission of sales tax was in fact a percentage of capital investment... Separate assessment orders were thus issued by the assessing officer of the sales tax department from time to time towards the incentive scheme amount. The Competent 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

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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 others 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 decision (supra), we set aside the impugned order and allow the appeal. 6. In the result, the appeal filed by the appellant is allowed.
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