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2019 (4) TMI 748 - AT - Central ExciseValuation - claim of Refund of excess duty paid - recovery of sales tax amount/ VAT amount and to retain with themselves as an incentive - duty on additional consideration of sales-tax collected from the buyers - Section 4 (3) (d) of Central Excise Act, 1944 - Held that:- The appellant herein had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the appellant. It becomes clear that when the sales tax/ VAT is payable at the time of removal, in that case, in terms of Section 4D of Central Excise Act, the same is not includable in transaction value. Tribunal Mumbai in the case of CCE, Mumbai Vs. M/s Welspun Corporation Ltd. [2017 (5) TMI 177 - CESTAT MUMBAI] has held that once the Sales Tax Department has assessed the sales tax as paid, the Central Excise Department cannot contend that since the State Government has remitted the amount back to the appellants as incentive, sales tax was not paid by them. After the assessment by the Sales Tax Department for sales tax to have been paid, condition of Section 4(3)(d) of Central Excise Act, 1944 stands fulfilled. There is a difference between remission and exemption. As while in case of exemption, the levy itself is statutorily exhausted and no sales tax is paid or payable by the assessee whereas in case of remission, the sales tax is payable as there is no exemption from levy and /or payment of sales tax at the time of clearance and the same has to be statutorily discharged - In the present case, the remission is in the nature of subsidy which the appellant was receiving from the State Government in the form of VAT 37B Challans and not from the buyers of the appellant. The said remission was not only as good as cash but can also not be considered as an additional consideration. The transaction value includes all the payments made by the buyer to the assessee. However, in the instant case, the subsidy has been paid to it by the State Government. Only the mode of payment is by way of crediting the sales tax head under VAT challan in favour of the appellant. Thus, it could not be said that the amount is in the nature of additional consideration. Time Limitation - Held that:- The evidence about any positive act except the allegation of using the VAT Challans for discharging the VAT liability for subsequent period could not be produced on record. The discharge of liability by way of VAT 37B Challans has already been held as legally sustainable methodology of discharging tax liability for subsequent period. It is held that Department was not entitled to invoke the extended period of limitation. The demand could be confined only to the normal period of one year - the demand as such is not sustainable. Appeal allowed - decided in favor of appellant.
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