9911796707
TMI Blog2003 (9) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... eir customers by representing the same as duty of excise, is required to be deposited by him to the credit of the Central Government. Evidence has to be brought on record to show that there was collection of certain amount representing duty of excise. Admittedly, in the present case, there was no collection by the appellants from their customers representing certain amount as duty of excise merely because of the simple fact that excise duty (at whichever rate payable) was already included in the Contract Value. In the present case, there is nothing on record to show that the appellants had raised the proforma invoice to their customers or they have collected any amount from the customers representing the same as duty of excise. The said dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand that no extra duty has been charged by them from the customers representing the same as duty of excise. The appellants before the Additional Commissioner has contended that they were a small-scale unit and were availing the benefit of Notification No. 1/93 during the relevant period. The duty was being paid on the basis of the price being charged from their customers, as reflected in the invoices raised by them. They contended that they had entered into an agreement with their customers who were mostly Government Authorities in response to the tenders issued from time to time and the price so quoted by them, was inclusive of the duty irrespective of the rate of duty which they would be liable to pay to the Department in terms of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were paying nil rate of duty or the full rate of duty. From the above, he concluded that the mere fact that the appellants initially paid the duty either at nil rate or thereafter, at concessional rate, by itself is no evidence that the appellants had collected the same amount from its customers representing the same as duty of excises. By observing so, he dropped the demand. Thereafter, the Revenue filed an appeal before the Commissioner (Appeals) who set aside the Order passed by lower authorities and confirmed the demand of duty of Rs. 7,78,520.88 (Rupees seven lakhs seventy-eight thousand five hundred twenty and paise eightly-eight) and also imposed personal penalty of Rs. 1.00 lakh (Rupees one lakh) under Rules 173Q(d) and 209 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 11D of Central Excise Act, 1944 require the assessee who collected any amount from the buyer of any goods in any manner as representing duty of excise to pay the said amount so collected, to the credit of the Central Government. The undisputed fact in the present case is that the invoices raised by the appellants to their customers did not show any amount as being collected by them as duty of excise (emphasis provided). The Revenue s case is that their contract price entered with their buyers already included the excise duty required to be paid and as such, it has to be concluded that the appellants have collected the duty amount from their customers. On the other hand, the appellants contention is that the value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng certain amount as duty of excise merely because of the simple fact that excise duty (at whichever rate payable) was already included in the Contract Value. The Tribunal in the case of National Organic Chemical Industries Ltd. v. Commissioner of Central Excise, Bombay-III reported in 2000 (115) E.L.T. 70 (Tribunal) has observed that the provisions of Section 11D are very clear and it is only where any amount is collected as representing any duty of excise, that has to be credited to the Government. In the present case, there is nothing on record to show that the appellants had raised the proforma invoice to their customers or they have collected any amount from the customers representing the same as duty of excise. The said duty was alrea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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