TaxTMI 
TaxTMI 
2023 (7) TMI 659
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....ncentives. The appellant availed the composite scheme. In the said scheme eligible units may avail of the facilities of both exemption and deferment of sales tax. Under this scheme, the eligible unit will be entitled to purchase free of tax while in the case of sale of finished goods availing the benefit of sales tax deferment . Accordingly, the appellant was availing the exemption on goods purchased whereas in the case of sale of finished goods availing the benefit of sales tax deferment. Further, under the said policy industry shall have to contribute two per cent of sales tax in case of exemption and three per cent of sales tax in case of deferment availed during the year for " Gokul Gram Yojana (GGY)' under the resolution No. INC/1095/2000(2)/1. 1.2 The show cause notice dated 03.01.2012 issued on the ground that the appellant have recovered VAT/CST amounting to Rs. 8,25,09,886/- and only 3% of it amounting to Rs. 24,75,299/- has been paid to the state government against "Gokul Gram Yojana" for the period from December, 2006 to April, 2010. The remaining amount of VAT/CST of Rs. 8,00,34,587/- has been retained by them for the period from December 2006 to April, 2010. According....
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.... further submits that the demand is time bar in as much as the show cause notice has been issued in January 2012 and the demand of duty was raised for the period of December, 2006 to April, 2010. Thus, entire demand is barred by limitation. He placed reliance on the following judgment:- NHK Spring India Ltd - 2016 (342) ELT 498 (P &H) Insucon Cables & Conductors Pvt. Ltd - 2016 (344) ELT 607 (Tri. Del) Cosmic Dye Chemicaal Vs. Collector of Central Excise, Bombay - 1995 (75) ELT 721 (SC) CCE vs. Chemphar Drug and Liniments 1989 (40) ELT 276 (SC) Pushpam Pharmaceuticals Company vs. CCE Bombay - 1995 (78) ELT 401 (SC) 3. Shri Tara Prakash, Learned Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. The fact is not under dispute that in the present case the nonpayment of sales tax /VAT is not on account of exemption but on account of remission granted by the State Government. The Adjudicating Authority has confirmed the demand relying on the Hon'ble Supreme Court Judgment in the case of Super Synotex (India) Ltd (Supra) whereas the....
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....ion of such tax separately for each tax period. The remission of tax is thus directly related to capital investment in fixed asset. There was no option to claim exemption from payment of sales tax. The quantum of remission was based upon the investment made in the fixed assets. The condition of the remission amongst others included to remain in production, employment of certain percentage of persons in assessee unit, and numerous other conditions as brought out in Para 9 of the impugned Order-in-Appeal. 5. 2 The remission amount was adjusted against the incentive amount receivable as per the Eligibility Certificate. The Sales Tax assessment orders indicated that the finished goods cleared by the appellants were assessed to full rate of tax and allowed as remission under Section 41 of Gujarat Value Added Tax Act, 2003. This shows that the Sales Tax was actually payable to the Government. The revenue has relied upon the definition of „transaction value' in Section 4 (3) of the Central Excise Act, 1944 and on the Board Circular No. 354/81/2000-TRU, dated 30-6-2000 and also on judgment of Hon'ble Apex Court in case of M/s Super Synotex case as reported in 2014 (301) E.L.T. 273....
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....x officer and subject to the condition that the Respondent's liability to the Sales Tax is "remitted". Thus when the sales tax/VAT is payable at the time of removal in that case in terms of Section 4(d) of the Central Excise Act, the same is not includible in the transaction value. Further the sales tax amount was adjusted against the remission granted by the sales tax authority under an assessment. 5. 4 The learned AR during hearing has relied upon the judgment of Hon'ble Supreme Court in case of M/s Super Synotex (India) Ltd. - 2014 (301) E.L.T. 273 (S.C.). We find that in the impugned order the learned Commissioner (Appeals) dealt with this Apex Court judgment in paras 11, 11.1 & 11.2, which are reproduced below : - I further find that the adjudicating authority while rejecting the refund claims filed by the appellants held that since sales tax has been collected and retained by them their case is covered by the Hon'ble Supreme Court's Order in "11. CCE v. Super Synotex and hence their refund claims were rejected. In the case of 11.1. Super Synotex India Ltd (supra) referred by the lower authority, the Apex Court held that there being an exemption from the payment of Sa....
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....equivalent to the capital investment made in fixed assets. This was further subject to the condition of re-investment of 50% of total incentive i.e. (i) to (ii) of para 10.3 above and not only (ii) incentive received in projects in State of Gujarat within a period of 10 years of the commencement of production. This is thus not an exemption of tax as was the issue before the Hon'ble Supreme Court in the above case, I find that the ratio laid down in this judgement cannot have any bearing on the present case of the appellants. Since the incentive Scheme, 2001 for re-development of Kutch Area affected by the earthquake in the year 2001 provided for incentive to the extent of investment made by the appellants in their industrial unit set up in Kutch area, it cannot be equated with the Rajasthan Sales Tax Incentive Scheme of 1989, Hence, I find that the reliance placed by the lower authority on the Apex Court judgment in the case of Super Synotex (supra) to reject the refund claim of the appellants, is unfounded." 5. 5 The Apex Court judgment of Super Synotex has already been distinguished by the learned Commissioner (Appeals) as above. However, the Revenue in the review order/appeal....
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....m part of transaction value. 5. 8 The Respondent has cited the order of Tribunal in case of CCE v. Uttam Galva Steels Ltd. 2015-TIOL-2242- CESTAT-MUM = 2016 (331) E.L.T. 261 (Tri.-Mum.). We find that the fact of that case is different from the facts in the present case, therefore, we do not incline to take any inference from the said decision of this Tribunal. 5. 9 We find that even sub-section (7A) of Section 11 of the Gujarat Value Added Tax Act, 2003 states that the tax that remitted is deemed to have been statutorily paid. The said provision is as under:- "notwithstanding anything contained .... where tax is levied or is leviable under this Act, or any earlier law is remitted or to be remitted or deferred or is deferrable under any tax incentive scheme granted by the Government of Gujarat, then tax shall he deemed to have been paid to the Government treasury... " 5. 10 Thus in our view, once the Sales Tax Department has assessed the Sales Tax as paid, the Central Excise Department cannot contend that since the State Government has remitted the amount back to the appellants as incentive, Sales Tax was not paid by them. Hence, we find that once the Sales Tax Departmen....