2013 (10) TMI 1243 - AT - Central Excise

Demand u/s 11D - Allegation of recovery of duty while availing SSI Exemption - The price charged by the appellant for the medicines remains the same throughout the year even though the appellant is entitled to exemption as an SSI unit and upto the first clearance of Rs.1.5 crores, the appellant does not pay any excise duty Held that - The appellant never collected excise duty during the period when he was availing SSI exemption - even though the price was fixed during throughout the year, both the buyer and the supplier had a clear understanding that no excise duty was payable during the period when the appellant was enjoying SSI exemption. The agreement is very clear - Both the buyer and the supplier had understood that during the period when the SSI exemption was available, excise duty is not payable even though the Column 10 of the Schedule showed the excise duty separately Following Mayfair Polymers Pvt. Ltd. Vs. CCE, Ahmedabad 2007 (9) TMI 519 - CESTAT, AHMEDABAD - charging of such a fixed price cannot be considered as having included the excise duty during the period when SSI exemption was availed - The appellant is on a better footing in the case the appellant has made out a prima facie case for waiver - the requirement of pre-deposit waived during the pendency of appeal Stay granted.

Summary

Issues:
- Demand for excise duty on medicines supplied to the Government of Karnataka
- Applicability of Section 11D regarding collection of excise duty
- Interpretation of agreement between buyer and supplier
- Claim of SSI exemption by the appellant
- Predeposit requirement and stay against recovery during appeal

Analysis:
1. Demand for excise duty on medicines supplied: The appellant supplied medicines to the Government of Karnataka through a specific entity. The issue arose when a show-cause notice was issued proposing to demand excise duty for a period during which the appellant had not paid any excise duty. The contention was that the price charged by the appellant for medicines, although exempted as an SSI unit, included excise duty. The demand for duty of Rs.21,87,178/- for a specific year was confirmed, along with an imposed penalty equal to the duty amount.

2. Applicability of Section 11D: The crux of the matter revolved around the interpretation of Section 11D concerning the collection of excise duty. The appellant argued that they never collected excise duty during the period of SSI exemption, despite the agreement showing the excise duty element separately. The appellant's position was that the understanding between the buyer and supplier was clear regarding the non-payment of excise duty during the exemption period.

3. Interpretation of agreement and SSI exemption claim: The agreement between the buyer and supplier played a vital role in determining the liability of excise duty. The appellant contended that even though the agreement mentioned excise duty separately, there was a mutual understanding that no excise duty was payable during the SSI exemption period. The Tribunal referred to a previous case involving a similar situation to support the appellant's argument, emphasizing that a fixed price inclusive of excise duty does not necessarily mean duty collection during exemption periods.

4. Predeposit requirement and stay against recovery: After considering the arguments from both sides and analyzing the agreement terms, the Tribunal found in favor of the appellant. It was concluded that the circumstances, as presented in the agreement and the understanding between the parties, supported the appellant's claim for waiver. As a result, the requirement of predeposit was waived, and a stay against recovery was granted during the pendency of the appeal, providing relief to the appellant from immediate payment obligations.

In conclusion, the judgment highlighted the importance of clear agreements, mutual understandings, and the specific circumstances surrounding excise duty exemptions in determining the liability of duty payment. The interpretation of statutory provisions, coupled with past precedents, played a crucial role in resolving the issues at hand and granting relief to the appellant.