2009 (8) TMI 718 - AT - Central Excise

Appellant is engaged in the manufacture of agricultural submersible pumps - which attracted concessional rate of duty of 8% (Notification No. 10/2006-C.E) - Instead of availing the benefit of the said notification the appellant cleared their final product at the rate of 16% of duty by paying the same out of their Modvat credit account - Revenue s contention is that such payment of higher duty at the tariff rate was with a view to encash the credit available in their accounts - Held that - provisions of Section 11D would also have not applicability inasmuch as the duty charged by the appellant from its customer stand paid to the Revenue though by making debit entries in their credit account - credit is available to the appellant for payment of duties on their final product - Appeal is allowed

Summary

Issues:
- Applicability of concessional duty rate under Notification No. 10/2006-C.E.
- Interpretation of Section 11D and Section 5A of the Central Excise Act, 1944.
- Validity of duty payment through Modvat credit account.
- Assessment of duty liability based on payment method.

Analysis:

The case involved a dispute regarding the duty payment by the appellant, engaged in the manufacture of agricultural submersible pumps, under Notification No. 10/2006-C.E., which provided for a concessional rate of duty at 8%. However, the appellant cleared their final product at a higher duty rate of 16% by utilizing their Modvat credit account instead of availing the benefit of the concessional rate.

The Revenue contended that the higher duty payment was made to utilize the credit available in the appellant's account, leading to the confirmation of duty liability under Section 11D read with Section 5A(1A) of the Central Excise Act, 1944. The Tribunal analyzed the provisions of Section 5A(1) which state that where goods are unconditionally exempted, the assessee has no choice but to pay duty. However, in this case, since the goods attracted a duty rate and were not unconditionally exempted, the Tribunal found that the provisions of Section 5A(1) did not apply. Additionally, the Tribunal noted that Section 11D would also not be applicable as the duty charged by the appellant from customers was paid to the Revenue through debit entries in their credit account, making the duties recovered by the appellant effectively paid to the Revenue.

Based on the above analysis, the Tribunal found that the appellant had a strong prima facie case in their favor. Consequently, the Tribunal allowed the stay petition unconditionally, indicating that the appellant was not liable for the duty amount confirmed by the Revenue. The judgment highlighted the importance of interpreting the relevant provisions of the Central Excise Act, 1944, in determining the duty liability of the appellant based on the payment method utilized through the Modvat credit account.