2004 (6) TMI 529 - AT - Central Excise

Summary

Issues:
1. Whether the appellants are required to pre-deposit duty amount under Section 11D of the Central Excise Act?
2. Whether the amount collected from customers, which was already deposited under Rule 57CC, needs to be paid again to the government?

Analysis:

Issue 1:
The appellants were required to pre-deposit duty amount of Rs. 1,00,92,340 under Section 11D of the Central Excise Act. The department initiated recovery of these amounts collected from customers. The appellant argued that the amount collected was the same as deposited under Rule 57CC, thus there should not be double payment to the government. The appellant relied on the judgment of Nu-Wave Shoes v. CCE and contended that the Tribunal had previously decided in favor of the assessee on a similar issue. On the other hand, the department relied on the Commissioner's findings and followed Board Circular No. 599/36/2001-CX to recover amounts under Section 11D if realized from customers.

Issue 2:
Upon careful consideration and perusal of the record, it was observed that the appellants had already deposited 8% of duty under Rule 57CC. They had only collected this amount from customers, and prima facie, it was not necessary to deposit it again to the government under Section 11D. The judgment of Nu-Wave Shoes was deemed applicable to the facts of this case. Therefore, the stay application was allowed unconditionally, waiving the pre-deposit of the entire amount and staying its recovery until the appeal's disposal. The prayer for early hearing was accepted, and the appeal was scheduled for a hearing on 15th October 2004.