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2023 (7) TMI 659 - AT - Central ExciseValuation - inclusion of Recovery of VAT/CST - remission of unpaid VAT by the State Government - appellant was availing the exemption on goods purchased whereas in the case of sale of finished goods availing the benefit of sales tax deferment - CBEC Circular No. 378/11/98/-CX dated 12.03.1998 - HELD THAT:- The fact is not under dispute that in the present case the nonpayment of sales tax /VAT is not on account of exemption but on account of remission granted by the State Government. The Adjudicating Authority has confirmed the demand relying on the Hon’ble Supreme Court Judgment in the case of COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II VERSUS M/S. SUPER SYNOTEX (INDIA) LTD. AND OTHERS [2014 (3) TMI 42 - SUPREME COURT] whereas the said judgment was distinguished by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, MUMBAI-I VERSUS M/S WELSPUN CORPORATION LTD. [2017 (5) TMI 177 - CESTAT MUMBAI] on the ground that in Super Synotex (India) Ltd the sales tax/ VAT was not paid by the assessee on the ground that the same was exempted at the time of removal of goods whereas in the present case VAT/Sales tax was very much payable while clearing the goods and subsequently the same was remitted by the State Government. This Tribunal considering the identical facts of remission of VAT/Sales tax in the case of Welspun Corporation Ltd held that the sales tax/VAT /CST actual payable but since the same was remitted it cannot be said that the sales tax/ VAT/CST was not payable. Therefore in terms of Section 4 (4) (d) (ii) of the Central Excise Act, 1944, the same is deducted from the assessable value. The ratio of the decision of Welspun Corporation Ltd is clearly applicable in the present case - the demand in the present case is not sustainable - Appeal allowed.
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