2013 (11) TMI 324 - AT - Central Excise

Amount to be Deposited u/s 11D - Waiver of pre-deposit - Whether the Applicant is required to deposit the amount collected by them from their customers by revising their contracts including the loss of 8% collected in lieu of Duty Held that - Following Mayfair Polymers Pvt. Ltd. Vs. CCE, Ahmedabad 2007 (9) TMI 519 - CESTAT, AHMEDABAD - While the contract might have indicated the ruling rates of excise, the excise duty collected should be with reference to the document mentioned in section 12A of the Central Excise Act viz. Document relating to assessment as well as invoice and other like documents where the assessee was required to indicate the excise duty payable at the time of clearances of the goods - no evidence has been produced to indicate that they have shown an amount of duty more than the what they have paid to department in such assessment documents and collected such higher amounts and hence no case is made out for seeking recovery under Section 11D - The applicants had made out a prima facie case for total waiver of pre deposit of dues - pre deposit of dues waived and stayed during the pendency of the appeal stay granted.

Summary

Issues:
Application for waiver of pre-deposit of duty and penalty under Rule 25 of the Central Excise Rules, 2002.

Analysis:
The appellant, engaged in manufacturing excisable goods, sought waiver of pre-deposit of duty and penalty amounting to Rs.2.12 crores. The goods were cleared with payment of duty and availing exemption under Notification No. 6/2002-CE. The appellant had been availing Cenvat Credit on common inputs and paid 8% of the price of finished goods cleared without duty payment. Subsequently, due to a loss of 8% in comparison to Cenvat Credit, the appellant revised contracts to recover the amount from customers. The Department issued a demand notice, contending that the 8% loss recovered should have been deposited as duty under Section 11D of CEA, 1944. However, the appellant did not show the recovery in the invoices, leading to the dispute.

The Revenue claimed a demand of Rs.7.91 crores, which was reduced to Rs.2.12 crores by the Commissioner. The Revenue did not appeal against this decision. It was acknowledged that the appellant continued to collect the 8% loss from customers without mentioning it in the invoices. The main issue was whether the appellant was obligated to deposit the amount collected from customers post contract revision, including the 8% loss as duty. The Tribunal noted that the appellant did not show the collected amounts separately in the invoices during the relevant period. Relying on precedents, the Tribunal held that the appellant had a prima facie case for waiver of pre-deposit, as no evidence indicated that duty amounts higher than what was paid to the department were collected.

In conclusion, the Tribunal granted total waiver of pre-deposit of dues adjudged, staying the recovery during the appeal's pendency. The decision was based on the specific finding in Mayfair Polymers Pvt. Ltd.'s case and the absence of contrary judgments presented by the Revenue. The judgment emphasized the importance of documenting duty amounts in assessment documents and invoices for proper compliance with excise regulations.