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2019 (7) TMI 1680 - CESTAT NEW DELHIValuation - inclusion of VAT subsidy in the assessable value - short/non payment of Excise Duty - contravention of Section 4(3)(d) of the Central Excise Act, 1944 - period January 2016 to December, 2016 - denial of abatement of Notification No. 26/2012-ST, dated 26.2.2012. Inclusion of VAT subsidy in the assessable value - HELD THAT:- The demand is not sustainable - This Tribunal has also occasioned to examine the issue afresh in case of M/s H-One India Private Limited Vs. CCE, Rajasthan [2019 (5) TMI 1226 - CESTAT NEW DELHI] wherein after considering the various decisions of this Tribunal, it has been held that the VAT subsidy obtained in form 37B under RISP scheme is not includible in the computation of transaction value under Section 4D of the Act. Abatement claimed scheme by the appellant under the Notification No. 26/2012 - denial on the ground that the appellant failed to adduce any documentary evidence as mandated by the Central Board of Excise and Customs 37B order dated 12.3.2007 - HELD THAT:- This issue is also decided in favour of appellant in case of M/s Benara Bearings & Pistons Ltd. Vs. CCE, Kanpur [2013 (4) TMI 672 - CESTAT NEW DELHI] where it was held that the procedural requirements of filing certificates or declarations on each and every GR amounts to legislation and cannot be upheld in as much as there is no such requirement of filing the affidavits/certificates in the notification itself. The notification only requires non-availment of credit by the transport agencies. It is not the Revenues case that the transport agencies, who were not even registered with the service tax department, has availed any credit. Admittedly, the appellant is not output service provider and only recipient of services and, therefore, is not laible to pay the tax under reverse charge mechanism and is excluded from the purview of Cenvat Credit Scheme. The amended notification as has been extracted above also strengthened the contention of appellant that as a service recipient is not bound to follow the requirement of endorsement of non-availment of Cenvat credit under 37B order by the CBIC. Appeal allowed - decided in favor of appellant.
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