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TMI Blog2023 (11) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... al Tax Department of the State Government as additional consideration, proposed recovery thereof. The confirmation of the demand upheld by the original authority in order [order-in-appeal no. BR/240/Th-I/2012 dated 8th October 2012] of Commissioner of Central Excise (Appeals), Mumbai is impugned before us. 2. It is the submission of the Learned Counsel for the appellant that the issue stands settled by decision of the Tribunal in Commissioner of Central Excise, Raigad v. Uttam Galva Steels Ltd [2016 (331) ELT 261 (Tri.-Mumbai)] and that further decision of the Tribunal in Kinetic Engineering Ltd v. Commissioner of Central Excise, Pune, Nagpur, Nashik [2012 (283) ELT 229 (Tri.-Mumbai)] has distinguished the implications of such remission on the basis of 'net present value (NPV)' from other schemes for foregoing of tax collected. It is also submitted that the decision of the Hon'ble Supreme Court in Commissioner of Central Excise, Jaipur-II v. Super Synotex (India) Ltd [2014 (301) ELT 273 (SC)] was distinguishable on facts as well as the scheme itself. 3. We have heard Learned Authorised Representative who contends that definition of 'transaction value' in section 4(3)(d) of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facturer assessees to pay the amount either at the end of stipulated period or at any point of time earlier on the basis of net present value (on the date of prepayment) of the amount of sales tax to be paid at the end of deferral period. We also note that there is no discussion about such a scheme in the Super Synotex judgment of the Hon'ble Supreme Court. The obvious conclusion is that none of the parties who were appearing before the Hon'ble Supreme Court pointed out to the Hon'ble Supreme Court that the issue involved in other appeals is different. It also appears to us that none of such affected appellants/ respondents have argued issue involved in their cases as we do not find any arguments which have been advanced before us or which were discussed in the case of Kinetic Engineering by this Tribunal as recorded or discussed in the Hon'ble Supreme Court's judgment. It does not appear that the counsels for the various respondents in the case of Kinetic Engineering were present in the Hon'ble Supreme Court and did explain the differentiating aspect and after hearing them, the Hon'ble Supreme Court dismissed their pleas and passed the said judgment. We also note that the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value. This is for the reason that "certainty in taxation" is a fundamental cannon of taxation; if that cannon is not followed, there will be confusion and chaos in the tax administration. If tax liability is made dependent on a future event, such a law can not be enforced or implemented in a fair and reasonable way. That is the reason why in all the provisions relating to determination of value, right from 1944 onwards, it has been provided in the law that the value has to be determined at the time and place of removal of the goods. In the instant case, the appellants claimed deduction towards sales tax as per the liability at the time of removal of the goods. Subsequently if that liability got altered due to changes in law or for any other reason, such alteration cannot have any impact or effect on the assessable value of the goods, which were cleared much earlier. A perusal of the table listed in the opening paragraph of this order clearly shows that the period of dispute involved was from 1992 to 2007-2008. In other words, the goods were cleared during this period. In all these cases, the sales tax liability applicable at the time of removal of the goods was def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases have been admitted by the Hon'ble Apex Court, these judgments are in jeopardy till the matter is finally decided by the Hon'ble Apex Court and hence they may not have any precedential value. However, it would be relevant to note that the Hon'ble Apex Court did not stay any of these orders, which implies the law as interpreted in these orders are still valid and enforceable. In all these judgments (cited in para 3.5 supra), the consistent view taken is that abatement of sales tax granted under the state laws or grant of sales tax incentives does not, in any way, affect the admissibility of deduction towards sales tax while determining the value for the purposes of Central Excise levy. We are in respectful agreement with the interpretation of law made in these judgments. On the ether hand, the citations relied upon by the Revenue also do not support the Revenue's case. In the Adhunik Detergents Ltd., case relied upon by the Revenue there was a sales tax exemption available and no sales tax was payable on the goods and, therefore, it was held that deduction as contemplated in Section 4(4)(d) (ii) would not be permissible. The Mewar Textile Mills case relied upon by the Revenue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant-company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price." Again in the case of Shri Bhagwati SSK Ltd. v. CCE, Pune, reported in 2000 (115) E.L.T. 120 (Tri.) this Tribunal held that fluctuations in price of excisable goods subsequent to clearance of goods would not affect assessable value and liability of excise duty already accrued. In the case of Triveni Engineering & Industries v. CCE, Meerut, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a number of circulars clarifying the abatement towards sales tax under various situations. These have been discussed in paragraphs 5.1 to 5.4 supra. From these clarifications, it is very evident that the deduction towards sales tax is permissible based on the amount billed or charged from the customers in accordance with the law irrespective of the fact whether the amount is retained by the assessee or incentives are given by the State Government to the assessee in respect of the sales tax so collected. The present stand of the Revenue goes directly against the instructions contained in the circulars issued by the board. The Hon'ble Apex Court in Paper Products Ltd. v. CCE reported in 1999 (112) E.L.T. 765 (S.C.) held that the circulars issued by the C.B.E. & C. are binding on the department and the department is precluded from challenging the correctness of the circulars even on the basis that the same is inconsistent with the statutory provision. A similar view was held by the Hon'ble Apex Court in CCE v. Dhiren Chemicals - 2002 (143) E.L.T. 19 (S.C.). Similarly in the case of Commissioner of Customs, Calcutta & Others v. Indian Oil Corporation Ltd. & Anr. reported in 4 (2002) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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