TaxTMI 
TaxTMI 
2023 (5) TMI 515
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.... "3. And, whereas, on scrutiny of documents submitted by the assessee, it has been revealed that: (a) IAR No. 646/2014-152/2015 dated 19.05.2015 is covering the period from 03/2010 to 03/2015. The audit was conducted on 15.04.2015 & 16.04.2015. As per audit report the audit had pointed out the issue and assessee agreed with their contention. Agreeing with the view of the audit, the assessee voluntarily reversed duty Rs. 6,49,017/- along with interest of Rs. 1,38,627/- and penalty of Rs. 88,947/- vide challan dated 16.04.2015. The para was raised and settled. Suitable intimation was communicated to the assessee vide letter C. No. V(I)646/IAR/GR M-I/BHD/2014/233 dated 19.05.2015. (b) IAR No. 814/2016-17(CE) dated 13.12.2016 is covering the period from 04/2015 to 10/2016. The audit was conducted on 28.11.2016 & 29.11.2016. As per audit report, it appears that the assessee was regularly paying duty on the VAT subsidy they received but there was short duty payment of Rs. 69,750/- during the period July 2016 to September 2016. On being pointed out by the audit the assessee admitted the short duty payment on value of Rs. 5,58,000/-. Similar to above, agreeing with the view of audit,....
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....omotion Scheme where under they were required to deposit VAT/CST/SGST at the applicable rate with the government and in terms of the scheme, they were entitled to disbursement of subsidy which is sanctioned in Form 37B and the Challans in the Form VAT, 37B can be utilised for discharge of the VAT liability of the appellant for subsequent period. The revenue proceeded to include such subsidy amounts in the value of the goods cleared by the appellants and demanded the differential duty. The appeal before the Tribunal was allowed vide Final Order No. A/51427 - 51514/2018 dated 27.04.2018, in favour of the appellants relying on the earlier decision of the Tribunal in the case of Shree Cement Ltd., Vs. CCE Alwar, 2018-TIOL-748-CESTAT Delhi, which was based on the decision in the case of Wellspun, which concluded that there is no justification for inclusion in the assessable value, the VAT amounts paid by the assessee using VAT, 37B Challans. Accordingly, the impugned orders were set aside and the appeal was allowed with consequential relief. 7. Thus the matter on merits concerning the amount of subsidy in question was finally decided by the Tribunal vide its judgement dated 27.04.18, w....
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....fice concerned to a place outside India; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid; (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if returned to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;" (ea) in the case of goods which are exempt from payment of duty by a special order issued under sub-section (2) ....
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....Court of Karnataka in CCEx vs. KVR Construction - 2012 (26) STR 195- "Therefore, mere payment made by the respondent will neither validate the nature of payment nor the nature of transaction. In other words, mere payment of amount would not make it a "service tax" payable by them. When once there is lack of authority to demand "service tax" from the respondent company, the department lacks authority to levy and collect such amount. Therefore, it would go beyond their purview to collect such amount. When once there is lack of authority to collect such service tax by the appellant, it would not give them the authority to retain the amount paid by the petitioner, which was initially not payable by them. Therefore, mere nomenclature will not be an embargo on the right of the petitioner to demand refund of payment made by them under mistaken notion. Applying the ratio of the aforesaid decisions, I find that the present case is squarely covered as the amount deposited by the appellant was erroneous as the department directed them to do so. The Tribunal while rejecting the plea of the revenue on merits have specifically held that the subsidy amount cannot be included in the transaction....