2019 (9) TMI 1591 - AT - Central Excise

Tribunal rules in favor of appellant on VAT subsidy inclusion and service tax dispute.

The Tribunal ruled in favor of the appellant in a case involving the inclusion of VAT/Sales Tax subsidy in the assessable value of excisable goods and ... Valuation - inclusion of amount of the VAT/Sales Tax retained by the appellant should have been included in the assessable value of the excisable goods - Section 4 (3) (d) of the Central Excise Act, 1944 - short payment of service tax under the Goods Transport Agency Service - HELD THAT:- The issue pertaining to inclusion of VAT/sales tax in the assessable value is concerned same has already been decided in cases of M/S SHREE CEMENT LIMITED VERSUS COMMISSIONER (APPEALS) , CENTRAL EXCISE, SERVICE TAX & CENTRAL GOODS & SERVICE TAX, JAIPUR-I [2019 (7) TMI 1862 - CESTAT NEW DELHI] where it was held that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT 37B Challans. Non-availment of Cenvat credit - GTA service provider - HELD THAT:- This Tribunal’s decision in case of M/S PRAKASH INDUSTRIES LTD VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2015 (7) TMI 430 - CESTAT NEW DELHI] where it was held that no consignment note as generally understood or delineated in Rule 4B 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. Issues Involved:1. Inclusion of VAT/Sales Tax subsidy in the assessable value of excisable goods.2. Short payment of service tax under the Goods Transport Agency (GTA) Service due to:a. Failure to prove non-availment of Cenvat credit by the GTA service provider.b. Absence of consignment notes/bilties for claiming exemption under specific freight amounts.Issue-wise Detailed Analysis:1. Inclusion of VAT/Sales Tax Subsidy in Assessable Value:The appellant was issued show cause notices for allegedly short-paying central excise duty by not including VAT/Sales Tax in the assessable value of excisable goods. The VAT/Sales Tax collected was paid using VAT 37B Challans under the Rajasthan Investment Promotion Subsidy Scheme. The department contended that the VAT/Sales Tax retained should be included in the assessable value as per Section 4(3)(d) of the Central Excise Act, 1944.The Tribunal referred to its decision in the case of Shree Cement Ltd. vs. Commissioner of Central Excise, Jaipur-I, where it was held that VAT amounts paid using VAT 37B Challans are considered legal payments of tax and should not be included in the assessable value. The Tribunal concluded that there is no justification for including VAT amounts paid using VAT 37B Challans in the assessable value.2. Short Payment of Service Tax under GTA Service:a. Non-availment of Cenvat Credit by GTA Service Provider:The department argued that the appellant failed to prove non-availment of Cenvat credit by the GTA service provider as the invoices did not have the required endorsement. The appellant contended that they provided declarations from each Goods Transport Agency certifying that no Cenvat credit was availed. The Tribunal referred to its decision in Prakash Industries Ltd. vs. Commissioner of Central Excise, Raipur, where it was held that the benefit of Notification No. 32/2004-S.T. could not be denied merely due to the absence of endorsement on the invoice when declarations were available. The Tribunal concluded that the appellant correctly availed the benefit of the notification.b. Absence of Consignment Notes/Bilties:The department demanded service tax for consignments where no consignment notes/bilties were furnished, which exempted consignments with freight amounts of Rs. 750/- per consignment or less. The appellant argued that services were received from small carriers who did not issue consignment notes, thus not falling under the definition of a Goods Transport Agency. The Tribunal referred to its decision in M/s South Eastern Coalfields Ltd. vs. Commissioner of Central Excise, Raipur, where it was held that if no consignment notes were issued, the transporter could not be categorized as a Goods Transport Agency. The Tribunal concluded that the appellant's claim was valid.Conclusion:The Tribunal found that all issues were previously decided in favor of the appellant in similar cases. Therefore, the impugned order-in-appeal was set aside, and the appeal was allowed. The operative part of the order was pronounced in the open court.