2006 (6) TMI 352 - AT - Central Excise

Summary

Issues:
1. Duty charged by consignment agent at a higher rate.
2. Appellants collecting duty at a different rate.
3. Department's notice for recovery of differential duty.
4. Application for waiver of pre-deposit and stay of recovery.

Analysis:

1. The issue in question revolves around the duty charged by the consignment agent at a higher rate of 18% from customers, whereas the appellants had paid duty at a rate of 16% when they removed the cotton yarn on cones to the consignment agent. The extra 2% duty charged by the consignment agent was remitted to the appellants, resulting in the appellants collecting duty at the rate of 18%.

2. Upon considering the submissions from both sides, it was observed that the department should have demanded duty from the appellants under Section 11A on the differential value of the goods, rather than issuing a notice for recovery of 2% duty under Section 11D of the Central Excise Act. The argument was made that the consignment agent, who collected the extra duty, is not considered "a person who is liable to pay duty" under Section 11D, and since the provision does not mention "assessee," the appellants also do not fall within the scope of this provision.

3. The lower appellate authority's observation was deemed correct, highlighting that the consignment agent's role in collecting extra duty does not make them liable for duty payment under Section 11D. The appellants were able to establish a prima facie case, leading to a decision for waiver of pre-deposit and stay of recovery concerning the amount of duty in question, which was Rs. 23,861.

4. Ultimately, the judgment concluded with the decision for waiver of pre-deposit and stay of recovery in favor of the appellants, based on the interpretation of the relevant provisions and the establishment of a prima facie case by the appellants. The order was dictated and pronounced in open court, providing a clear resolution to the issue at hand.