TaxTMI 
TaxTMI 
2011 (2) TMI 565
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....mounting to Rs. 1,19,46,785/- along with interest and equal amount of penalty besides penalty of Rs. 10,00,000/- on the Managing Director. 2. Two show cause notices dated 4-11-2008 and 3-12-2008 for the period from April, 2005 to December 2007 and January, 2008 to October, 2008 respectively came to be issued to the appellants requiring them to show cause against recovery of the said amount. It was the case of the Department that in the course of scrutiny of the purchase invoices of the appellants by the audit party, it was revealed that the appellants were enjoying the sales tax exemption under Notification issued by the State Government being exemption Notification No. 30A/99-2000-452 dated 25-10-1999 and T/30A/2002-03/654 dated 25-3....
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.... 4. The Advocate for the appellants while assailing the impugned order firstly on the ground that in view of series of instructions issued by the Board and the decisions of the Tribunal in the matter of Maruti Udyog Ltd. v. C.C.E., Delhi-IV reported in 2004 (166) E.L.T. 360 submitted that it was not open to the Commissioner to ignore the said decision and instructions which clearly disclose that once the State Government under statutory powers grants certain exemptions from payment of sales tax and the at the same time, or allows the credit on account of deemed payment of sales tax, it is not open to the Commissioner to construe the phrase 'actually paid or actually payable' contrary to the views expressed by the Tribunal in th....
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....o unamended provision of the Section 4 and the phraseology used in the amended provision clearly requires actual payment of sale tax in order to exclude the same from the transaction value. In the case in hand, the appellants have not actually paid the required amount of sales tax while availing the exemption under the State Government Notification, and hence no fault can be found with the impugned order. As regards the bar of limitation, it was submitted that since the availament of exemption from payment of sales tax was revealed to the Department for the first time in the course of audit and not pursuant to any declaration by the assessee, the Department was justified in invoking the extend period of limitation. 7. Learned Advocate....
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....essees were paying such duty by availing cenvat credit in respect of excess payment of duty on inputs, and therefore, the appellants, cannot be denied the similar benefit when credit is availed in relation to the sales tax, maybe on the strength of notification exempting actual payment of sales tax. The contention is totally devoid of substance. In the case of cenvat credit, in terms of the provisions of concerned law, it is not available unless there is actual payment of sales tax. The learned Advocate, however, while the order being dictated sought to intervene and submitted that the above observation is factually incorrect. With due respect, we are unable to accept the contention. Learned Advocate made reference to the notification issue....
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....e amount legally permissible under the local tax laws to be charged/billed from the customer/buyer,"    [emphasis supplied] Apparently, in para 6 of the Circular nowhere required "actual payment" or "actual liability to pay". It only speaks of payable or chargeable or to be charged or to be payable to the customers. Based on the said paragraph, the decision was delivered by the Tribunal and the issue of 'actual payment' was not involved therein. Undoubtedly, the decision in para 12 refers to one decision in the matter of Trinidad Lake Asphalt Operating Co. Ltd. v. The Commissioner of Income Tax for the of Trinidad and Tobago - (1945) A.C. 1, In Re : Harmony and Montague Tin and Copper Mining Co., Spargo's case 28 L.T. 153 an....
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.... in the Central Statute on the strength of the notification issued by the State Government in relation to the State statute. 11. As regards the bar of limitation, apparently, it is revealed that the fact that the appellants were availing sales tax exemption was revealed to the Department only in the course of audit and it was not disclosed by the appellants to the Department. Considering the same, the Department invoked the extended period of limitation on the ground of suppression of relevant materials and information. Prima facie, we do not find any irregularity in that regard. 12. It is submitted that the matter involved interpretation of statue in relation to the phraseology used in the definition of the term 'transaction va....