2013 (11) TMI 1173 - AT - Central Excise

Short payment of duty Waiver of Pre-deposit - After supply of pipes in one of the contracts there was an exemption from excise duty for pipes vide Notification No. 6/2002-CEdated 01-03-2002 CE by virtue S. No. 191A inserted in the table attached to the notification by Notification No. 47/2002-CE Revenue was of the view that they have paid 16% on some consignments under each contract, the applicant was collecting amounts representing it as excise duty for all supplies under the seven contracts and such amounts which were collected should be deposited to Government of India as per the provisions of Section 11D of the Central Excise Act Held that - The issue whether the amounts were billed as excise duty to the buyer of the goods is also debatable - Prima facie it will cause extreme financial hardship to the applicant and tilt the balance of convenience against the applicant if pre-deposit is ordered thus it a fit case for granting total waiver of pre-deposit of dues arising from the order for admission of appeal stay granted.

Summary

Issues:
1. Whether the appellant collected amounts representing excise duty for all supplies under seven contracts.
2. Whether the demand raised by the adjudicating authority is barred by limitation.
3. Whether Section 11D of the Central Excise Act applies in this case.
4. Whether the appellant should be required to pre-deposit the dues arising from the impugned order.

Analysis:

Issue 1:
The applicant, a manufacturer of PSC pipes, supplied pipes for various projects of TWAD Board. The dispute arose when the Revenue alleged that the applicant collected amounts representing excise duty for all supplies under seven contracts. The applicant argued that they did not bill the amount as excise duty to the customers except in cases where they paid excise duty due to delays in obtaining certificates. The Tribunal found the argument debatable and considered that the applicant had not received the disputed amounts. Consequently, the Tribunal granted total waiver of pre-deposit of dues.

Issue 2:
The appellant contended that the demand raised by the adjudicating authority was barred by limitation as the show-cause notice was issued much after six years. The Revenue, however, argued that Section 11D of the Central Excise Act provides a self-contained mechanism for recovery without any time limit. The Tribunal did not delve deep into this issue but granted the waiver of pre-deposit based on the financial hardship it would cause to the appellant.

Issue 3:
The Revenue relied on internal correspondences to assert that the appellant collected amounts representing excise duty from TWAD Board, invoking the application of Section 11D for recovery. The Tribunal found the matter debatable and did not conclusively determine whether Section 11D applied. However, considering the financial implications on the appellant, the Tribunal granted a total waiver of pre-deposit.

Issue 4:
The Tribunal, after considering arguments from both sides, found it fit to grant a total waiver of pre-deposit of dues arising from the impugned order for the admission of the appeal. The Tribunal also stayed the collection of the dues during the pendency of the appeal to prevent financial hardship to the appellant. The decision was made to balance the convenience and avoid causing extreme financial hardship to the appellant.