TMI Blog2011 (2) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State authorities, it would not automatically be deemed to have incorporated in the Central statute to enable the assessee to extend the benefit available under the State statute to the Central Statute Regarding limitation - Suppression of facts - it is revealed that the fact that the appellants were availing sales tax exemption was revealed to the Department only in the course of audit and it was not disclosed by the appellants to the Department - Decided against the assessee - E/1131, 1262-1263 , 2249/2010 - 317-320/2011-EX(PB) - Dated:- 11-2-2011 - Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. REPRESENTED BY : Shri T.R. Rustagi, Advocate, for the Appellant. Ms. Monika Batra, DR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)] Heard the Advocate for the appellants and the DR for the respondent. These are the applications for stay of the order passed by the Commissioner, Chandigarh on 19-2-2010 whereby the appellants are required to pay the central excise duty amounting to Rs. 1,19,46,785/- along with interest and equal amount of penalty besides penalty of Rs. 10,00,000/- on the Managing Director. 2. Two show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 (166) E.L.T. 360 submitted that it was not open to the Commissioner to ignore the said decision and instructions which clearly disclose that once the State Government under statutory powers grants certain exemptions from payment of sales tax and the at the same time, or allows the credit on account of deemed payment of sales tax, it is not open to the Commissioner to construe the phrase actually paid or actually payable contrary to the views expressed by the Tribunal in the said decision as well as ignoring the instructions by the Board. He further submitted that once the State Government grants certain benefits, the same cannot be sought to be denied by misconstruing the provision of the Central Excise Act. According to the appellants, the amount actually received while clearing the goods in the form of BED/Sales Tax could not form part of the assessable value ignoring of the notification issued by the State Government. Otherwise, it would virtually result in negating the benefit granted to the assessee by the State Government under the said notification. 5. It is also submitted that the first notice issued by the Department was beyond the period of limitation and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nputs procured by the appellants yet the appellants had availed the credit to the extent of 4% of such tax in terms of the said notification and had utilised the same while paying the sales tax. The words actually paid or actually payable which were conspicuously absent in the unamended provision clearly disclose that in order to exclude the words paid or payable towards taxes from the transaction value, it is necessary for the assessee to produce the evidence regarding actual payment or liability to pay such tax. It is, however, sought to be contended that even in case of excess duty payment, the assessees were paying such duty by availing cenvat credit in respect of excess payment of duty on inputs, and therefore, the appellants, cannot be denied the similar benefit when credit is availed in relation to the sales tax, maybe on the strength of notification exempting actual payment of sales tax. The contention is totally devoid of substance. In the case of cenvat credit, in terms of the provisions of concerned law, it is not available unless there is actual payment of sales tax. The learned Advocate, however, while the order being dictated sought to intervene and submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gresham Life Assurance Society, v. Sishop [1902] AC 287. All these three decisions relate to contractual relationship between the parties, right to have mutual understanding regarding deemed payment or cessation of liability. The decisions do not relate to liability which arises under statutory provision. Thus, in the case of contractual relationship there is always ample opportunity to the parties to agree for the modalities for discharge of the contractual liability. In the case of statutory liability, the same is to be discharged in the manner provided under the statute and the assesees have no right to modify the same by adopting some different method. 10. For the reasons stated above, therefore, the said decision in the case of Maruti Udyog Ltd. can be of no help to the appellants. Besides, once the statutory provisions clearly state that in order to avail exemption of certain amount from the transaction value, it has to be the amount actually paid or actually payable as tax, and the said provision being found in the Central Statute, merely because certain exemption is granted in relation to the State tax by the State authorities, it would not automatically be deemed to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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