2007 (6) TMI 330 - AT - Central Excise

Summary

Issues:
1. Recall of dismissal of appeal due to want of COD clearance.
2. Applicability of Notification 21/02 and duty collection from holding company.
3. Interpretation of Section 11D regarding duty payment and collection.

Recall of Dismissal of Appeal:
The judgment addresses the issue of the dismissal of the appeal earlier due to the lack of COD clearance. However, as COD clearance was subsequently obtained and submitted, the order of dismissal dated 5-8-2004 is recalled. The Miscellaneous Application for restoration of the appeal is allowed, and the appeal is restored to its original number.

Applicability of Notification 21/02 and Duty Collection:
The appellants in the case sold goods to their holding company, charging only 50% of the duty under Notification 21/02. The demand was confirmed against the appellants under Section 11D as the holding company showed 100% duty collected from their customer. The appellants argued that the holding company's declaration of 100% duty was a mistake, and the selling price inclusive of duty was fixed as per a Central Government Directive. The Tribunal noted that Section 11D pertains to a person required to pay duty and collect extra amount as duty, which must be paid to the government. As the appellants did not collect any extra amount from their customer, they were not obligated to pay additional duty. Consequently, the Tribunal waived the requirement of pre-deposit during the appeal's pendency, allowing the stay petition.

Interpretation of Section 11D:
The judgment delves into the interpretation of Section 11D concerning duty payment and collection. It clarifies that the provision applies to individuals obligated to pay duty and collect any excess amount as duty, which must be remitted to the government. In this case, as the appellants did not collect any additional amount from their customer, the Tribunal found that they had a case for the waiver of pre-deposit. Consequently, the Tribunal decided to waive the pre-deposit requirement during the appeal's pendency, granting the stay petition.

This comprehensive analysis of the judgment highlights the issues addressed, the arguments presented by the parties, and the Tribunal's reasoning and decision on each issue, providing a detailed overview of the legal aspects involved in the case.