2015 (2) TMI 916 - AT - Central Excise

Duty demand u/s 11D - Collection of excess duty from customer which was not mentioned in the invoice - whether the appellant have collected from their customer (PHED) an amount of ₹ 1,72,80,890/- towards excise duty which is excess of the excise duty mentioned in the invoices and which has not been paid to the Government and whether this amount alleged to have been collected by the appellant from PHED can be adjusted against their duty liability of ₹ 1,73,74 - Held that - Under section 11D(1) every person who is liable to pay excise duty under this act or rules made there under and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this act or rules made there under, from the buyer of such goods in any manner as representing excise duty, shall forthwith pay the amount so collected to the Central Government. Section 11D has to be read with section 12A and 12B. While section 12A provides that notwithstanding anything contained in this act or any other law for the time being in force, every person who is liable to pay excise duty on any goods shall, at the time of clearances prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which the goods are to be sold. Section 12B provides that every person who has paid the duty of excise on any goods under this act, unless the contrary is proved by him, shall be deemed to have passed on the full incidence of such duty to the buyer. Thus, when an assessee in the invoices issued by him to his customers mentions an amount as excise duty a presumption can be made that that amount had been recovered by him from the customer as excise duty and only in that case section 11D can be invoked if that amount had not been paid to the Central Government. In this case all the Central Excise invoices placed on record by the appellant excise duty payable is shown as nil. Therefore, merely from the contract terms that providing that the price at which the pipes are to be supplied shall be inclusive of all the taxes, it cannot be presumed that the price also included excise duty. Impugned order demanding an amount of ₹ 1,72,80,890/- from the appellant under Rule 11D is not correct. The requirement of pre-deposit of this amount along with interest for compliance with the provisions of section 35F would result in undue headship to the appellant. The requirement of pre-deposit of the demand under confirmed section 11D along with interest is, therefore, waived for hearing of the appeal and recovery thereof is stayed - Stay granted.

Summary

Issues:
1. Eligibility for exemption under notification no. 6/02-CE (Serial No. 196-A).
2. Collection of excess excise duty from the customer and its recovery.

Eligibility for exemption under notification no. 6/02-CE (Serial No. 196-A):
The case involved the appellant, manufacturers of pre-stressed concrete pipes, who supplied PSC pipes to Rajasthan Public Health Engineering Department under a contract where the pipes were supplied at a composite price inclusive of all taxes. The appellant claimed duty exemption under notification no. 6/02-CE (Serial No 196-A) for the supplies. The Commissioner held in favor of the appellant regarding the exemption, dropping the duty demand of &8377; 1,73,74,520/-. However, the Commissioner directed the appellant to pay &8377; 1,72,80,890/- under section 11D(3) as it was alleged that this amount representing excise duty had been collected by the appellant from the customer in excess of the duty mentioned in the invoices/returns and not paid to the Central Government.

Collection of excess excise duty from the customer and its recovery:
The appellant contended that they had claimed exemption under notification no. 6/02-CE and thus, all excise invoices to the customer showed nil excise duty, implying no collection of duty from the customer. The Commissioner, however, concluded that the appellant had indeed recovered an amount representing excise duty from the customer, based on the contract terms indicating the price inclusive of all taxes. The Tribunal analyzed the provisions of section 11D, along with sections 12A and 12B, to determine whether the appellant had collected an amount representing excise duty from the customer. It was observed that since all the Central Excise invoices showed nil excise duty, it could not be presumed that the price inclusive of all taxes also included excise duty. Relying on a previous Tribunal case, the Tribunal held that the demand under section 11D was not justified. The requirement of pre-deposit of the demanded amount was waived, and the recovery was stayed for the appeal hearing.

In conclusion, the Tribunal allowed the stay application, finding in favor of the appellant regarding both the eligibility for exemption under the notification and the alleged collection of excess excise duty from the customer. The Tribunal emphasized that the contract terms indicating the price inclusive of all taxes did not automatically imply the inclusion of excise duty, especially when all excise invoices showed nil excise duty, leading to the waiver of the pre-deposit requirement and stay of recovery for the appeal hearing.