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TMI Blog2006 (6) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ts pay an amount equal to 8% of the sale price of the exempted final products in terms of Rule 57CC/57AD. The said amount is credited to the Government account by debiting in the PLA/Cenvat account maintained by the appellants. This position is not in doubt. Since the amount of 8% is paid to the Government, the appellants collect the same from their customers. Show Cause Notices have been issued proposing to demand the amount paid under Rule 57CC to the Government and collected from the buyers under Section 11D of the Central Excise Act, 1944. The contention of the Revenue is that the amount of 8% representing excise duty has been collected from the buyer and, therefore, the said amount is to be paid to the Government under Section 11D of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umbai). The matter was referred to the Larger Bench as reported in the case of Unison Metals Ltd. v. CCE, Ahmedabad - 2004 (62) RLT 95(CESTAT-Mum.). The Larger Bench observed that the question of law as referred in the reference did not arise for consideration and hence referred it back to the Regular Bench. (iii) The Apex Court, in the case of Mafatlal Industries Ltd. v. UOI - 1997 (89) E.L.T. 247(SC) has held that the section contemplates payment of duty only once and not twice over. (iv) The learned Advocates argued that the following conditions are necessary for invoking Section 11D :- (a) The person should be liable to pay duty (b) The amount paid by him should have the character of duty (c) The person should a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the condition above have been examined and settled in various decisions as explained below. Condition No. (a) The Hon ble Tribunal in the case of CCE v. Perfect Refractories reported in 2001 (127) E.L.T. 304 has held that in a situation where the assessee is not liable to pay any duty at all, the collection of an amount describing them as surcharge in addition to the price of the goods, cannot be considered as a collection representing excise duty payable on the goods warranting its payment to the Central Government under Section 11D of the Act. The above decision of the Tribunal has been followed by this Bench in the case of Rashtriya Ispat Nigam Ltd., in Final Order No 750/2005, dated 5-5-2005 [2005 (70) R.L.T. 683 (T)] As the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to this case. Condition No. (c) The expression paid on any excisable goods represents the actual payment of duty as held by the Apex Court in the case of CCE v. Dhiren Chemical Industries reported in 2002 (139) E.L.T. 3 (S.C.) = 2001 (47) RLT 881 (S.C.). Therefore wherever the expression paid is used in Section 11D, it has to represent actual payment of duty and not a fictional payment of duty. Condition No. (d) and (e) The provision of Sections 11D(3) and 11D(4) makes it further clear that the assessee should in the first place pay excise duty as the goods in question collect an amount representing excise duty at the time of selling the said goods. There has to be a further assessment of the duty payable determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the invoice, the amount of 8% has been shown under the Heading Cenvat Reversed . As such, the Commissioner erred in applying the Board s Circular. 5. The learned JCDR relied on the following case laws :- (i) Vimal Moulders (I) Ltd. v. CCE, New Delhi - 2004 (164) E.L.T. 302 (Tri.-Del.) (ii) P.T Steel Industries v. CC, Ahmedabad - 2004 (177) E.L.T. 1117 (Tri.-Mumbai) (iii) Process Pumps (India) P. Ltd. v. CCE, Bangalore - 2004 (173) E.L.T. 98 (Tri. - Bang.) (iv) G.S. Pharmabutor (P) Ltd. v. CCE, Jaipur - 2005 (182) E.L.T. 167 (Tri.-Del.) (v) GTC Industries Ltd. v. CCE, Vadodara - 2004 (176) E.L.T. 728 (Tri.-Del.) (vi) Circular No. 599/36/2001-CX, dated 12 Nov., 2001 6. We have gone through the records of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n though, the amount of 8% was collected from the buyers, that amount has not been retained with them. It is not the case of the department that the appellants collected an amount in excess of the amount of 8% payable to the Government. There is also no provision in the Central Excise Law debarring the appellants from collecting the amount of 8% from the buyers. This stand is taken in the following decisions cited supra. (i) Nu-Wave Shoes v. CCE, New Delhi (ii) CCE v. Pennar Industries Ltd. However, contrary view was taken in the following decisions cited by the learned JCDR : (i) Vimal Moulders (I) Ltd. v. CCE, New Delhi (ii) P.T. Steel Industries v. CC, Ahmedabad Therefore, the matter was referred to the Larger ..... X X X X Extracts X X X X X X X X Extracts X X X X
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