TMI Blog2019 (9) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued by the transporter to the appellant in the transaction the tax liability under GTA does not arise. Since the issues involved in the present appeal is similar to the one decided by decisions of coordinate benches of this Tribunal, the same is followed - appeal allowed - decided in favor of appellant. - Excise Appeal No. 50736 of 2019 - FINAL ORDER NO. 51831/2019 - Dated:- 16-9-2019 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) AND SHRI C.L. MAHAR, MEMBER (TECHNICAL) Shri Ajay Mishra, Advocate for the appellant. Shri H.C. Saini, Authorized Representative (DR) for the Respondent ORDER The brief facts of the matter are that the appellant have been issued two show cause notices which have also been adjudicated by orders-in-original dated 26 July 2017 and 15 February 2018. The details of the show cause notices as well as the respective order-in-originals are given here below :- Sl. No. Appeal F. No. Orders-in-Original and Adjudicating Authority Show Cause Notice No. and central excise duty and service tax demanded Period of dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue that no consignment note/bilty were furnished to claim the exemption notification which exempts the consignments involving freight amount of ₹ 750/- per consignment or less. 3. The learned Counsel appearing on behalf of the appellant has submitted that so far as the issue pertaining to non-inclusion of VAT/Sales Tax subsidy received by the appellant in the form of the VAT-73B challan from the Rajasthan Government under its policy of Rajasthan Investment Promotion Scheme. The matter has already been decided by this Tribunal in its decision in the case of Shree Cement Ltd. versus Commissioner of Central Excise, Jaipur I vide final order No. 50908 of 2019 dated 18 July 2019. It has been contended by the appellant that so far as the issue pertaining to absence of requisite declaration on the consignment notes regarding non-availability of the Cenvat credit by the service provider it has been submitted that the appellant has furnished requisite declaration made by each and every Goods Transport Agency/ transporter certifying that no Cenvat credit has been availed by them. It has also been contended that all the declarations made by the service providers have all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving heard both the sides, we find that all the three issues are no longer res-integra same have been decided by this Tribunal in decisions, as mentioned below. So far as issue pertaining to inclusion of VAT/sales tax in the assessable value is concerned same has already been decided in cases of :- (i) M/s Shree Cement Ltd. versus Commissioner of Central Excise, Jaipur I vide final order No. 50908 of 2019 dated 18/07/2019. The relevant extract of this Tribunal s decision is given below :- 7. We have heard both sides at length and perused the appeal record. As outlined above, the appellants are covered by the Investment Promotion Schemes of the Rajasthan Government. In terms of the various schemes of the Rajasthan Government, the appellants are required to discharge their VAT liability by making payment of the same. Out of such VAT credited to the Government, a certain portion is disbursed back to them in the form of subsidies. Such disbursement happens in the form of VAT 37B, challan which can be utilized in subsequent periods to discharge VAT liability. The crux of the dispute in the present case is whether such subsidy amounts are required to be included in the assessab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessarily pass order for remission of such tax separately for each tax period. The remission of tax is thus directly related to capital investment in fixed asset. There was no option to claim exemption from payment of sales tax. The quantum of remission was based upon the investment made in the fixed assets. The condition of the remission amongst others included to remain in production, employment of certain percentage of persons in assessee unit, and numerous other conditions as brought out in Para 9 of the impugned Order-in-Appeal. 11. By following the decision of the Tribunal in the Welspun Corporation Ltd. case we conclude that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans . (ii) The second issue pertaining to non-availment of Cenvat credit by the GTA service provider is concerned same is covered by this Tribunal s decision in case of Prakash Industries Ltd. versus, Commissioner of Central Excise, Raipur reported under 2015 (40) S.T.R. 804 (Tri. Del.). The relevant extract of this decision is as follows :- 7. In terms of Notification No. 32/2004, Service tax under GTA service is payabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04-S.T. and 1/2003-S.T. could not be denied on the ground that declaration was not made on each and every consignment as it was merely prescribed by one CBEC circulars . Similar view was held in the case of Venkateshwara Distributors (P) Ltd. (supra). Thus it is evident that the appellant had correctly availed of the benefit of Notification No. 32/2004-S.T. and there is no legal basis to deny the said benefit. Consequently the demand of ₹ 6,75,96,097/- under GTA service is clearly unsustainable. 8. In the light of the analysis above, the impugned demand is not found to be sustainable. Appeal is allowed . With regard to second issue of demand under Goods Transport Agency service where the invoice/bilty etc. of freight of consignments of less than ₹ 750/-/₹ 1500/- are not available. We find that this issue has also been settled by this Tribunal in case of M/s South Eastern Coalfields Ltd. versus Commissioner of Central Excise, Raipur reported under 2017 (47) S.T.R. 93 (Tri. Del.). The relevant extract of this Tribunal s decision is given below :- 7. The matter has come up for decisions on earlier occasions by the Tribunal in Nandganj Sihori Sugar Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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