TaxTMI 
TaxTMI 
2004 (1) TMI 158
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....t was allowed to collect sales tax from the buyers and retain it with them, while they agreed to forego the sales tax incentives pertaining to subsequent expansions effected by them. Appellant did not include sales tax element in the assessable value of the goods while paying excise duty thereon. While so, show cause notice dated 4-10-2002 was issued to the appellant alleging that the benefit conferred by Haryana Government is includible in the assessable value of the vehicle under Section 4 of the Central Excise Act, 1944 for the reason that this amount does not form part of the sales tax 'actually paid or payable' by the appellant and thus is not eligible for exclusion provided under Section 4(3)(d) of the Act. Duty to the extent of Rs. 7,20,90,932/- was demanded on the sales tax benefit which came to Rs. 22.44 crores for the period August, 2001 to July, 2002. The notice also proposed imposition of penalty. The Commissioner took the view that sales tax amount collected by the appellant from the buyers and retained by it under the incentive scheme is not eligible for abatement under Section 4(3)(d) of the Act and excise duty is payable on the sales tax element. Accordingly duty de....
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....r Level Screening Committee shall be final. (4) ... (5)(a) Subject to other provisions of this rule, an eligible industrial unit (except a prestigious unit) holding a valid entitlement certificate shall be entitled to the concession of deferment of payment of sales tax including central sales tax and conversion of the same to capital subsidy, computed on the sale of goods (including bye-products and waste) manufactured by the unit or arising from the process of manufacturer and declared in the sales tax returns filed by the unit, without taking into account the rebate admissible under Section 15A or the rules framed under the Act, at the scale, subject to the time-limit and the extent related to the fixed capital investment (FCI), as tabulated below :- …Table I Table II Category Concession Extent of tax concession small-scale Period Scale of tax Medium/Large Scale A, B and C 100% of Additional investment in plant and machinery 5 years 1st to 5th year : 50% Table III…… and the unit shall be required to pay only the balance of tax after deducting the rebate and the capital subsidy plus any purchase tax payable ....
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....t date. The appellant submits that this register also would show that the benefit granted under Rule 28C is in the nature of deferment of sales tax which subsequently got converted into capital subsidy. 5.The appellants being a prestigious unit and their case is that of an expansion, the State Government granted concession on the lines of Rule 28C(5)(a) i.e., 50% subject to maximum ceiling of 100% of the additional investment. Appellants were given 14 years to avail of this benefit and in lieu of the extended period they had to agree to forego all the benefits for subsequent expansion. The above would show, according to the appellant, they were granted benefit of deferment of sales tax collected by them and thereafter the same was converted into capital subsidy. Entitlement certificate issued to the appellant also would show that benefit was granted to them under Rule 28C. According to the appellant it is a case of appellant discharging its liability to the State Government by way of making payment of sales tax collected by it and the State Government simultaneously returning the amount to the assessee as capital subsidy. This aspect has been clarified by the Sales Tax authority u....
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....8-CX., dated 12-3-98 cannot have any application to the appellants case in view of the subsequent amendment which came into force with effect from 1-7-2000 to the definition of 'transaction value'. Transaction value is defined under Section 4(3)(d) as follows : "transaction value" means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organisation expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax, and other taxes, if any, actually paid or actually payable, on such goods." 9.According to the Commissioner in order to claim abatement sales tax should have been actually paid or actually payable on such goods. Since the word 'actually' was not there in Section 4(4)(d)(ii) at the time when Circular dated 12-3-....
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.... on business in the colony of Trinidad and Tobago. The Barber Asphalt Corporation was a company in U.S.A. and was the holder of a large majority of the issued share capital of the appellant-company. It was also a debtor of the appellant-company as purchaser of Asphalt mined and refined by the appellant-company in colony of Trinidad and Tobago. The company passed a resolution that certain amount of dividend due to Barber Asphalt Corporation be declared payable by cancellation of the company's claim in a like amount against Barber Asphalt Corporation. The question arose whether money was actually paid to Barber Asphalt Corporation of New Jersey. Their Lordships took the following view : "The transaction involved the sending to Barber by the appellant, and receipt by Barber from the appellant, of the dividend. This was effected by the agreement that payment should be made by cancellation of the debt for goods supplied. This method had been mutually agreed before the dividend was declared. The agreement was carried out by each party making corresponding entries in its books. These were not merely book-keeping entries. They represented the actual receipt of the dividend by Barber, and ....