2005 (5) TMI 436 - AT - Central Excise

Summary

Issues:
Recovery of excess Excise Duty under Section 11D of the Central Excise Act, Burden of proof on the appellant, Plea of limitation regarding the show cause notice.

Analysis:
1. Recovery of Excess Excise Duty under Section 11D:
The appellants were engaged in manufacturing Automatic Data Processing Systems and availed concessional rates of duty under Notifications 9/98-C.E., 9/99-C.E., and 9/2000-C.E. The department alleged that the appellants collected an excess amount of Rs. 6,14,123/- as Excise Duty from customers during a specific period. The lower authorities confirmed this demand under Section 11D(3) of the Act. The appellants argued that they did not collect any excess duty, supported by Chartered Accountants' certificate and RT-12 Returns showing duty paid at concessional rates. The tribunal noted that the invoices mentioning normal duty rates were not conclusive evidence, and the department failed to rebut the evidence presented by the appellants. As per Section 11D, duty assessed refers to self-assessment in RT-12 Returns, and since no evidence of excess duty collection was found, the demand under Section 11D was unsustainable.

2. Burden of Proof on the Appellant:
The appellants contended that they did not collect excess duty, emphasizing that their RT-12 Returns and subsequent invoices reflected only concessional duty rates. The Chartered Accountants' certificate supported this claim. The tribunal acknowledged that the evidence provided by the appellants was not rebutted by the department. It was highlighted that the department could have gathered evidence from customers to verify the duty payments, which was not done. The tribunal concluded that the appellants did not collect any excess duty, and Section 11D could not be invoked against them.

3. Plea of Limitation Regarding the Show Cause Notice:
The appellants argued that the department should have issued the show cause notice within a reasonable period, citing a Supreme Court judgment. The tribunal did not delve into the limitation issue as it found the demand under Section 11D unsustainable based on the lack of evidence of excess duty collection. Consequently, the impugned order was set aside, and the appeal was allowed.

Thus, the tribunal ruled in favor of the appellants, emphasizing the importance of proper evidence and self-assessment documents in determining the collection of excess duty and highlighting the burden of proof on the department to rebut the appellant's evidence.