TaxTMI 
TaxTMI 
2019 (9) TMI 1591
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....04/ Suprabhatam/06/AJM/ 2017/4162 dated 31/05/2017 CE duty amounting to Rs. 84,283/- (ii) Service tax amounting to Rs. 2,03,253/- (service tax Rs. 1,97,906/- + Education Cess Rs. 2,455/- + S.H.E. Cess Rs. 1,227/- + Swachchh Bharat Cess Rs. 1,665/- April 2015 to September 2016 2012-2013 to 2015-2016 2. APL/JPR/CE/ JP/121/III/ 18 03/2017-CE- Superintendent dated 15/02/2018 passed by the Superintendent CGST Range XL VIII Ajmer (i) Duty amounting to Rs. 32,855/- (ii) Service Tax amounting to Rs. 1,20,019/- (including cess) October, 2016 to June 2017 April 2016 to June 2017 2. The issue at (i) in both the show cause notices as indicated above pertains to alleged short payment of the central excise duty by not including the element of VAT/Sales Tax in the assessable value of the excisable goods as the amount of VAT/Sales Tax collected by the appellant from buyers have been paid in the form of challans issued by Government of Rajasthan in the form of VAT 37B Challan under Rajasthan Investment Promotion Subsidy Scheme and, therefore, the amount of the VAT/Sales Tax retained by the appellant should have been included in the assessable value of the excisable ....
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....e declaration to that effect is available with the service recipient. The learned Counsel has relied upon following decision in this regard :- (i) Lykes Line Ltd. versus Commissioner of Service Tax, Mumbai - I reported under 2017 (50) S.T.R. 51 (Tri. - Mum.); (ii) Sandoz P. Ltd. versus Commissioner of Central Excise, Raigarh reported under 2014 (33) S.T.R. 424 (Tri. - Mum.); (iii) Venkateshwara Distributors versus Commissioner of Central Excise reported under 2013 (31) S.T.R. 469 (Tri. - Del.); (iv) Yash Paper Ltd. versus Commissioner of Central Excise reported under 2014 (35) S.T.R. 407 (Tri. - Del.) ; (v) Micromatic Grinding Tech. Ltd. versus Commissioner of Central Excise reported under 2012 (25) S.T.R. 355 (Tri. - Del.); and (vi) Prakash Industries Ltd. versus Commissioner of Central Excise, Raipur reported under 2015 (40) S.T.R. 804 (Tri. - Del.) 4. With regard to the issue that the appellant have not been able to provide consignment note/bilties where as per their claim the amount of freight involved is less than Rs. 750/- or Rs. 1,500/- per trip. It has been submitted that they have received the service from the small ....
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....ot be considered as actual payment of VAT. 8. Both sides have referred to the decision of the Apex Court in the case of Super Synotex India Ltd. In the above decision the Apex Court has categorically held that after 1-7-2000, unless the sales tax/VAT is actually paid to the goods, no benefit towards excise duty can be given in terms of Section 4(3)(d). However, we note that the Tribunal in the case of Welspun Corporation Ltd. (supra) has distinguished the decision of the Apex Court in the light of Gujarat VAT Act, 2003. In the Welspun Corporation Ltd. case, the assessee had opted for remission of tax scheme under which a portion of the VAT paid was remitted back to the assessee. The Tribunal held that such subsidy amounts are not required to [be] included in the transaction value. 9. In the present case we know that for the initial period the assessees are required to remit the VAT recovered by them at the time of sale of the goods manufactured. A part of such VAT is given back to them in the form of subsidy in Challan 37B. Such challans are as good as cash but can be used only for payment of VAT in the subsequent period. In terms of the scheme of the Government o....
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....tification nowhere lays down the requirement that the invoices of GTA service provider should contain declaration to that effect; the requirement for such a declaration was stipulated only by executive instructions of CBEC. It is not the Revenue's case that the GTA service providers had availed of the Cenvat credit or the benefit of Notification No. 12/2003-S.T. Further, the stipulated declaration was stamped by the appellant on the invoices and all the goods transport agencies have given in writing that they had permitted the appellant to do so. They have also affirmed that they had not taken any Cenvat credit or the benefit of Notification No. 12/2003-S.T. These GTA service providers were not even registered with the Service Tax department. It is seen that in the case of Yash Paper Ltd. (supra), the CESTAT observed as under : "3. The assessee remitted Service tax under the reverse charge mechanism, as the recipient of GTA service. Before the primary authority and at the time of personal hearing, declarations issued by concerned Goods Transport Agencies on their letter-heads, addressed to the assessee, were furnished certifying that no credit on input or capital goods use....