9911796707
TMI Blog2019 (4) TMI 748X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the appellants have not paid Central Excise duty on additional consideration of sales-tax collected from the buyers and retained by them to the extent of sales-tax liability not actually paid to the State Exchequer with intent to evade payment of duty impressing upon Section 4 (3) (d) of Central Excise Act, 1944 that the transaction value should include the aforesaid amount as well that the show cause notice No. 10195 dated 12th January, 2018 was served upon the appellants calling them upon to explain as to why the Central Excise Duty amounting to Rs. 9,35,69,393/- has been not paid by them on the amount of Rs. 74,85,55,144/- collected as sales tax during the period from January, 2016 to June, 2017 and that the same shall not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant was utilising to discharge the output VAT liability for the subsequent period. The Department has treated the said discharge of VAT liability vide the said VAT Challans as retention of sales tax by the appellant holding same, while levying/ confirming the impugned demand to have been included in the transaction value. The authorities below have held that utilising the VAT Challans does not amounts to the actual payment. Accordingly, the value thereof is liable to be included in assessable value and is liable for the duty. 7. In view of these facts, we are of the opinion that 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which reads as follows:- "Transaction value means the price actually paid or payable for the goods, when sold and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods." 9. In terms of the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, the appellant had paid the entire amount of sales tax collected from the customers, with the Sales Tax Department without retaining even a meagre portion thereof. Hence, the benefit granted by RIPS to the appellant herein is not in the nature of exemption or incentive from payment of sales tax but is a remission where nothing was initially retained by the appellant. Thus, the facts of present case are absolutely different from the case decided by the Hon'ble Apex Court. 12. Finally coming to the issue of alleged mis-representation, we are of the opinion that it has already been observed that no amount of Government Exchequer as far as the VAT was concerned, was retained by the appellant. No question of evasion of duty at all arise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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