TaxTMI 
TaxTMI 
2023 (6) TMI 449
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....appeal, has been set aside and allowed. 2. The issue that arises for consideration in this appeal is as to whether the amount of subsidy received by the respondent from the State Government under the Madhya Pradesh Industrial Investment Promotion Assistance Scheme, 2004 is includible in the assessable value of the goods cleared during the period in dispute i.e. from 2012-2013 to 2015-2016, in terms of section 4(3)(d) of the Central Excise Act, 1944. 3. The Commissioner (Appeals), while allowing the appeal, made the following observations:- " 2. The facts of the case are that during course of Audit of records of the Appellant it was observed that the Appellant during the period 2013-14 to 2015-16 received VAT/CST incentive! subsidy of Rs....
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....in M/s Super Synotex (India) Ltd the Assessee paid only 25% and retained 75% of the amount which was collected as sales tax. 75% of the amount collected was retained by the Assessee. The amount payable as sales tax was only 25% of the normal sales tax. Here, the Hon'ble Apex Court held that Sales tax or VAT or turnover tax is payable or paid to the State Government on the transaction, which is regarded as sale, i.e., for transfer of title in the manufactured goods, and the amount paid or payable to the State Government towards sales tax, VAT, etc. is excluded because it is not an amount paid to the manufacturer towards the price, but an amount paid or payable to the State Government for the sale transaction, ie., transfer of title from ....
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....ble to the Government. Thus distinguished the judgment of Hon'ble Apex Court in case of M/s Super Synotex (India) Ltd. as the Sales Tax was actually payable and there was as such no blanket exemption from sales tax. The term "remission" from sales tax itself means that the sales tax was actually payable at the time of clearance of goods but was remitted at a later date by passing of assessment orders by the Sales Tax authorities. While in the instant case I find force in the Appellant's contention that the Adjudicating Authority miserably failed to address the issue in as much as the impugned Adjudication Order is completely silent on the Appellant's submission that since they have actually paid the entire Sales Tax Hon'ble ....
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....ipur-I [2023 (3) TMI 1120-CESTAT NEW DELHI], and, therefore, the appeal filed by the Department should be dismissed. 5. Shri Rakesh Agarwal, learned authorized representative appearing for the Department has, however, submitted that in view of the decision of Supreme Court in Commissioner of Central Excise Jaipur-II Vs. Super Synotex (India) Ltd. [2014 (301) ELT 273 (SC)], the appeal deserves to be allowed. 6. The submissions advanced by the learned authorized representative appearing for the Department and the learned counsel appearing for the respondent have been considered. 7. The reference that was made by the Division Bench in Harit Polytech is as follows:- " (A) whether in the facts and circumstances, the capital/wage subsidy in ....
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..... (supra) leading to erroneous judgment in the said case, as held by the Member (Technical) OR The provisions of section 9 of Rajasthan VAT Act 2003 has got no application in the facts of the present case, as held by the Member (Judicial). (F) It is an appropriate case for reference to the ld. Third Member on the questions framed by the ld. Member (Technical) OR There is no case for reference to the Ld. Third Member and the appeal is fit to be allowed, as held by the Member (Judicial)." 8. After referring to the provisions of law and the various decisions referred to by the assessee and the Department, the reference was answered in the following manner:- "31. To revert, what has to be examined is whether in a case where the ass....