TaxTMI 
TaxTMI 
2018 (5) TMI 203
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....quired to pay Sales Tax to the Sales Tax Department. As per the contract, the prices are inclusive all taxes, therefore, appellant claim refund of excess duty paid on the component of Sales Tax paid by them. The refund claim was rejected by the authority below on the ground that as the Sales Tax has been paid after completion of the contract and the same is not inclusive in the contract, therefore, they have to bear the amount of Sales Tax and whatever duly have been paid by them at the time of clearance of goods is correctly paid. Therefore, the refund claim is not admissible. Aggrieved from the said order, the appellant is before us. 3. The Ld. Counsel for the appellants submits that their contract of supply of goods was inclusive of all taxes i.e. Sales Tax, excise duty other statutory levies and freight. If any duty or taxes leviable after completion of contract is to be borne by the appellant. In fact the Sales Tax was leviable on the goods sold by them at the time of clearance of goods but the appellant was under bona fide belief that they are entitled for exemption from Sales Tax, therefore, they did not charge the component of Sales Tax in the invoices. Consequently, they ....
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....eers Pvt. Ltd. Vs. CCE, Chennai-III (supra) wherein this Tribunal observed as under:- "6. We have gone through the rival contentions. In the brief facts of the case the entire circumstance leading to the refund claim have been detailed. Hence we do not want to repeat the same. It is very clear that the appellants quoted an amount of Rs. 621/- per piece without including the excise duty element as at the time of quotation no duty was payable. The fact that the price is inclusive of duty does not mean that the price includes duty element when the duty is nil. When the exemption was withdrawn, the appellants made Herculean efforts for the re-introduction of the exemption notification. They were also successful when the Govt. of India re-introduced the exemption with effect from 1-10-2001. As law abiding citizens, the appellants paid excise duty treating Rs. 621/- as cum-duty price. This action of the appellants in the peculiar circumstances of the case should not be held against them to deny the rightful benefit due to them. Even though duty was paid on 3-10-2001 the same is not payable by virtue of re-introduction of exemption notification. The Ordnance Factory, Trichy were very cle....
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....be borne by the appellant from their account. Therefore, I agree with the findings of the Ld. Commissioner (Appeals) that no excise duty has been paid on the Sales Tax element and hence there is no excess payment of duty. Besides, the appellant have failed to submit any concrete/specific documentary evidence to prove that the contract price actually included the Sales Tax. During their oral pleadings also, they did not bring up any such evidence. In the invoice No. 264 placed on record against Sales Tax, it is mentioned exemption A/F and no Sales Tax figure is mentioned at all and hence in the absence of any documentary proof, it is mere assumption that Sales Tax figure was included in the price charged from the buyer. 11. In view of the above, I find that there is no infirmity in the order of the Ld. Commissioner (Appeals) and the same is upheld. 12. The appeal of the appellants, being devoid of any merit, is dismissed. Devender Singh Member (Technical) Difference of opinion As there is difference of opinion between both the Members, therefore, matter is place before the Hon‟ble President to appoint third Member to decide the following issues:- (A) Whether the Member ....
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....from sales tax and was awaiting decision from the State Authorities. Accordingly, in the invoices prepared for clearance of the goods the duty of excise was calculated on cum duty basis by reverse calculation and the assessable value was arrived at Rs. 226.399. Later, the Sales Tax Authorities refused to grant the exemption applied for. This resulted in payment of sales tax on the past clearances. Since, the value agreed upon is a total value inclusive of all taxes, the appellant re-calculated the assessable value and claiming excess payment of excise duty on the ground that the sales tax element should also be deducted prior to arriving at the assessable value. The claim for refund was filed. It is the submission of the learned Counsel that since no Central Excise duty is payable on sales tax, the sales tax paid later also should be deducted from the assessable value and the appellant should be eligible for refund. 3. The learned AR submitted that the contract clearly says that the appellant shall bear all the duty liabilities. At the time of clearance only excise duty element was paid. No sales tax was paid or payable. Now, the appellant after all the transaction is over and del....
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....‟. It is clear that the appellant is claiming exemption for the goods. The same was later denied by the sales tax authorities resulting in payment of sales tax. The "transaction value" as mentioned above clearly talks about sales tax actually paid or actually payable. In the present case when the goods were cleared on the final assessment neither sales tax was paid or actually payable. Later the sales tax exemption/dispute was settled against the appellant. This will not make the final assessments already made, without any room for future completion/finalizing of assessment by way of provisional assessment, for deduction of sales tax payable. In other words, when the goods were finally assessed and cleared the sales tax deduction on such clearances either should be on "actually paid" or "actually payable". In the present case both are not applicable. Incidentally, in a situation where any element of assessable value is not finally known recourse for provisional assessment is resorted to. Such provisional assessment is not only for applying relevant date (limitation) either for demand or for refund. The basic need for provisional assessment is to declare that the assessment is....