TMI Blog2018 (11) TMI 1753X X X X Extracts X X X X X X X X Extracts X X X X ..... udhary, Member (Judicial) And Hon ble Shri Bijay Kumar, Member (Technical) Shri H. Saini, AR for the appellant Ms. Sukriti Das, Advocate for the respondent ORDER Per Bijay Kumar 1. This appeal is filed by the Commissioner, CGST and Central Excise, Jabalpur against the order passed by Ld. Commissioner (Appeals) vide Order-in-Appeal No. BHO-EXCUS-001-APP-58-18-19 dated 25.04.2018, wherein the order passed by the Ld. Adjudicating Authority has been set aside. 2. The fact of the case is that the respondent is manufacturing of aluminium ingots, aluminium billets, aluminium wire rods falling under chapter 76 of Central Excise Act. 3. The respondent clears their final products upon payment of Central Excise duty and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent as collected the assistant of 75 % of VAT paid by them under Scheme MPIIPS of 2018, even though they were charging VAT on the full rate from their buyers. The transaction value, as per Section 4(3) (d) of Central Excise Act permit only actual amount of VAT payable to be deducted, not the whole of amount as has been done by the appellant. Further Revenue placed the reliance on the decision of Apex Court in case of CCE, Jaipur vs. Super Synotex(India) Limited. [2014 (310) ELT 273(SC)], wherein it was observed that the respondent is entitled to get the deduction of the amount actually paid to the State Government towards the VAT and the amount of refund of VAT directly paid to the respondent by the State Government are not adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax period. The Department has taken the view that to the extent of the subsidy amount, the appellant has retained the VAT recovered from the buyers and hence such amounts are required to be included in the Transaction Value under Section 4(3) (d) of the Central Excise Act. The appellant however has argued that they are paying full VAT recovered from the buyers to the account of the State Government. The subsidy amount sanctioned to them on the basis of such VAT paid and hence the same is not includable in the Transaction Value. 8. A similar issue has come up before the Tribunal in the case of Shri Cement Ltd. V/s Commissioner decided by the Tribunal vide Final Order No. 50189-50191/2018 dated 18/01/2018 in which the Tribunal observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pun Corporation Ltd. (Supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assesse had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to the included in the transaction value. 9. In the present case we know that for the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to them in the form of subsidy in Challan 37 B. Such Challans are as good as cash but can be used only for payment of VAT in the subsequent period. In terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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