2013 (11) TMI 1181 - AT - Central Excise

Duty charged from customers but not paid to department Demand u/s 11D - Waiver of Pre-deposit Held that - The invoices raised by the appellant to their customers, in addition to the price of the goods, mentioned the excise duty - The burden is on the appellant to prove that the amount mentioned as excise duty in the invoices was not collected by them from their customers - the appellant have not been able to establish prima facie case in their favour appellant directed to deposit Rupees Forty Five Thousand as pre-deposit upon such submission rest of the duty to be waived till the disposal Partial stay granted.

Summary

Issues: Alleged non-payment of excise duty, applicability of Section 11D, burden of proof on the appellant, waiver from pre-deposit for hearing the appeal.

Analysis:
1. The issue in this case revolves around the appellant's invoicing practices regarding the supply of body pouches with and without water bottles. The appellant had mentioned a specific amount as excise duty on the invoices. The department contended that the appellant charged customers for duty when none was payable, leading to a demand of Rs. 90,594 under Section 11D.

2. The original Adjudicating Authority's decision was upheld by the Commissioner (Appeals), prompting the appellant to file an appeal along with a stay application. During the hearing, the appellant's counsel argued that even though the duty amount was on the invoice, it was not actually recovered from customers, thus seeking a waiver from the pre-deposit requirement for the appeal to be heard.

3. The Joint Commissioner (Jt. CDR) representing the department opposed the stay application, emphasizing that since the invoices indicated the disputed amount as excise duty and it was not paid to the department, the demand under Section 11D was correctly upheld. The burden of proof lay on the appellant to demonstrate that the duty amount mentioned in the invoices was not collected from customers.

4. The presiding judge carefully considered both parties' submissions and the evidence on record. It was noted that the appellant's invoices did include the excise duty amount, placing the burden on the appellant to prove that this amount was not recovered from customers. As the appellant failed to establish a prima facie case in their favor, they were directed to deposit Rs. 45,000 within four weeks. Compliance was to be reported by a specified date, and on depositing this amount, the pre-deposit requirement for the remaining demand, interest, and penalty would be waived, with recovery stayed pending the appeal's disposal.