9911796707
TMI Blog2003 (4) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... out of liquid oxygen purchased by the appellants from outside parties. The appellants were not required to pay any sales tax on the compressed oxygen inasmuch as the sales tax was being paid by the manufacturers of liquid oxygen and as both liquid and compressed oxygen fall under the same classification, as per the provisions of Andhra Pradesh General Sales Tax Act, the appellants were not required to pay sales tax on the oxygen sold in cylinders. However, the appellants were collecting the sales tax at the rate of 16% from their customer but were not paying the same. The disputes relates to the deduction of the said 16% sales tax collected by the appellants but not actually paid to the sales tax department. 2.Proceedings were initiated a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants factory was inclusive of sales tax. The appellants have not paid any sales tax to the department and as such, in terms of provisions of Section 4, no amount is deductible. The amount of sales tax collected by the appellants is an additional consideration from their buyers and should be added in the assessable value of the compressed oxygen. 5.We have considered the submissions made from both the sides. The appellants arguments as summarized in the Order-in-Appeal are as under : "(i) Oxygen sold in cylinder is classifiable under Heading No. 2804.11 of Central Excise Tariff Act, whereas, the liquid oxygen is subjected to classification under Heading No. 2804.13. Accordingly, the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause the sales tax at 16% was already paid at the earlier stage on the same goods. Thus, the tax is leviable on the goods buy not collected on account of duty payment already made at earlier stage. (v) In view of this position, the sales tax amount collected by the appellants is indeed in the nature of reimbursement of the tax already paid and the exemption to the appellants is conditional only on account of payment of tax at the earlier stage. (vi) The goods in question are not eligible for any unconditional exemption from payment of sales tax and the appellants have not collected any tax at a rate higher than the one that is applicable in their case. When the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax already paid at the point of first sale and benefit of deduction from the sale price should be extended. (x) In view of the above submissions, the order of the Joint Commissioner of Central Excise, Visakhapatnam now being appealed against may be set aside with consequential relief in favour of the appellants." 6.Commissioner (Appeals) has considered the above contention of the appellants and has observed as under : "I have examined the position. As per Section 4(4) of the Central Excise Act, 1944, the value in relation to any excisable goods does not include the amount of duty of excise, sales tax, and other taxes, if any, payable on such goods and, subject to such rules as may be made, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not find any infirmity in the views taken by the Commissioner (Appeals). Admittedly, sales tax at the rate of 16% is being collected by the appellants and the same is not being paid to the sales tax department. As such, the said amount is required to be considered as an additional consideration flowing to the appellants. The sales tax which the input manufacturer has paid cannot be claimed as a deduction by the present appellants inasmuch as there is no such provisions to that effect. The appellants' contention that sales tax 'payable' is to be deducted is also not convincing inasmuch as no sales tax is payable by the appellants at the second stage of sale of compressed oxygen. The Commercial Tax Officer, Gajiwalia vide his letter dated 1- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither disclosed nor declared to the Department that they were charging sales tax in respect of the second sales of compressed oxygen and liquid oxygen as the case may be. It was only on being asked by the Department the appellants informed that the total amount of the said invoices was inclusive of sales tax. Even at this stage, the appellants had chosen not to disclose the fact of non-payment of the amounts so realised to the Commercial Tax Department. During the course of investigations conducted by the Central Excise Officers with the Commercial Tax Department it was found that the appellants had not paid any amount towards sales tax in respect of second sales and instead availed exemption from payment of sales tax. The appellants had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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