2018 (7) TMI 5 - AT - Central Excise

Exclusion of VAT payments from excise duty calculation under investment promotion scheme.

M/s Dhuleva Industries Versus CCE &GST, Udaipur

The Tribunal ruled that VAT payments made using subsidy Challans under the Rajasthan Investment Promotion Scheme should not be included in the assessable ... Valuation - inclusion of VAT in assessable value - Revenue was of the view that VAT liability discharged by the utilisation of the investment subsidy granted in Form 37B actually paid, for the purpose of Section 4 of the Central Excise Act - Held that:- Identical issue decided in the case of Shree Cements Ltd. V/s CCE, Alwar [2018 (1) TMI 915 - 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 - appeal allowed - decided in favor of appellant. Issues:Interpretation of the applicability of investment subsidy on VAT liability for excise duty calculation.Analysis:The case involved an appeal against an Order-in-Appeal dated 02.02.2018 regarding the inclusion of subsidy amounts in the value of goods cleared by the appellant for excise duty calculation. The appellants operated under the Rajasthan Investment Promotion Scheme, eligible for subsidies disbursed in Form 37B. The Revenue contended that the subsidy amounts should be included in the assessable value of goods manufactured by the appellants for excise duty calculation. The Tribunal referred to a similar case involving Shree Cements Ltd. where the issue was whether subsidy amounts should be included in assessable value as per Section 4 of the Central Excise Act.The Tribunal analyzed the concept of transaction value under Section 4, post-01/07/2000, allowing deduction of sales tax/VAT actually paid from the transaction value for excise duty calculation. The Revenue argued that VAT payment using 37B Challans did not constitute actual payment of VAT. Reference was made to the decision of the Apex Court in Super Synotex India Ltd., emphasizing that unless sales tax/VAT is actually paid, no benefit towards excise duty can be granted under Section 4(3)(d). However, the Tribunal distinguished this based on the Welspun Corporation Ltd. case, where subsidy amounts were not required to be included in the transaction value under a similar scheme.The Tribunal observed that VAT payments using subsidy Challans were considered legal payments of tax under the Rajasthan Government's scheme. Referring to the Welspun Corporation Ltd. case, where remission of tax was directly related to capital investment, the Tribunal concluded that there was no justification for including VAT amounts paid using VAT 37B Challans in the assessable value. Consequently, the impugned orders were set aside, and the appeals were allowed, following the earlier decision.In conclusion, the Tribunal's decision clarified that under the Rajasthan Investment Promotion Scheme, VAT payments made using subsidy Challans should not be included in the assessable value for excise duty calculation, aligning with the principles outlined in previous judgments and the specific conditions of the scheme.