Page 111 - ELT_15th June 2020_VOL 372_Part 6th

2020 ] MARUTI SUZUKI INDIA LTD. v. COMMISSIONER OF INCOME TAX, DELHI 789

shall be allowed (irrespective of the previous year in which the liability to
pay such sum was incurred by the assessee according to the method of ac-
counting regularly employed by him) only in computing the income re-
ferred to in Section 28 of that previous year in which such sum is actually
paid by him :
Provided that nothing contained in this section shall apply in relation to
any sum which is actually paid by the assessee on or before the due date
applicable in his case for furnishing the return of income under sub-section
(1) of Section 139 in respect of the previous year in which the liability to pay
such sum was incurred as aforesaid and the evidence of such payment is
furnished by the assessee along with such return.
11. The untilised MODVAT credit on 31-3-1999 to the credit of the as-
sessee was Rs. 69,93,00,428/-. The MODVAT credit was accumulated to the ac-
count of the assessee due to payment of Excise Duty on raw materials and inputs
which were supplied to it by the suppliers and reflected in the invoices by which
raw materials and inputs were supplied. There is no denial to the fact that the
appellant was entitled to utilise this credit in payment of Excise Duty to which
the assessee was liable in payment of Excise Duty on manufacture of its prod-
ucts. When we analyse provision of Section 43B of the Act the provision indicates
that deduction thereunder is to be allowed on fulfilment of the following condi-
tions :
“(a) there should be an actual payment of Excise Duty whether “by way of
tax, duty, cess or fee, by whatever name”;
(b) such payment has to be “under any law for the time being in force”;
(c) the payment of such sum should have been made by the assessee;
(d) irrespective of the method of accounting regularly employed by the
assessee, deduction shall be allowed while computing the income tax
for the previous year “in which sum is actually paid” by the assessee;
(e) the expression “any such sum payable” refers to a sum for which the
assessee incurred liability in the previous year even though such sum
might not have been payable within that year under the relevant law.”
12. The fulfilment of the above statutory conditions is necessary for al-
lowing deduction under Section 43B. We have to examine the facts of the present
case to find out as to whether all the conditions which are necessary for permis-
sible deduction under Section 43B are present here or not.
13. The crucial words in Section 43B(a) are “any sum payable by the as-
sessee by way of tax, duty, cess or fee...”. We need to examine as to whether unu-
tilised credit under MODVAT Scheme was sum payable by the assessee.
14. The Excise Duty is levied under the Central Excise Act, 1944 and
collected as per the Central Excise Rules, 1944. The assessee in reference to the
Central Excise Rules, 1944 is Assessee as defined in Rule 2(3) which is to the fol-
lowing effect :-
“Rule 2(3). “assessee” means any person who is liable for payment of
duty assessed and also includes any producer or manufacturer of excisable
goods or a registered person of a private warehouse in which excisable
goods are stored;”
15. The taxable event is manufacture and production of excisable arti-
cles and payment of duty is relatable to date of removal of such article from the
EXCISE LAW TIMES  15th June 2020  111