9911796707
TMI Blog2009 (9) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are engaged in manufacturing of EOT Cranes and cleared in knock-down condition to M/s. Satish Dhawan Space Centre and Defence Research Development Organisation at Nil rate of duty under Notification No. 10/1997, dated 1-3-1997 as amended. 3. The appellants has debited an amount equal to 10% of the price shown on the invoice of the said EOT Cranes in terms of Rule 6(3)(b) of Cenvat Credit Rules, 2004. 4. The appellants have recovered the amount, so reversed, from their customers by way of raising separate commercial invoices in the form R-1 Series. It was alleged that the appellants have suppressed the value of product on the invoice at the time of clearance and have recovered the additional amount at later date by way of Commercia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act. He further submits that the recovery can be made under Rule 14 of the Cenvat Credit Rules only if Cenvat Credit is wrongly taken and/or wrongly utilized and/or has been erroneously refunded. In this case, the Cenvat credit has not been wrongly taken and has not been wrongly utilized and has not been erroneously refunded. Hence, no amount can be recovered under Rule 14 of the Cenvat Credit Rules. 9. He further submits that while passing the impugned order, the Commissioner (Appeals) has relied upon the provisions of Section 2(10) of the Sale of Goods Act, 1930, wherein the Section 2(10), which reads as under :- "Price means the money consideration for a sale of goods" 10. In this regard, the Ld. Counsel submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the duty paid on the inputs used in the manufacture of the exempted final products. To support his contention he placed reliance on Mahindra & Mahindra v. CCE, Mumbai, 2007 (211) E.L.T. 481 (Tri-Mumbai) and submits that the provisions laid down in that case will not apply. 12. He further submits that the said amount of Rs. 96,20,337/- is thus a "tax" collected by the Government, which tax has been collected from the customers and that cannot be termed as the price of the goods. He further, submitted that the demand is time barred, as the show cause notice dated 30-8-2007 and the demand relates to the period 28-3-2005 to 6-9-2005 i.e. it relates to the period beyond the normal period of limitation. 13. The extended period cannot be invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) E.L.T. 835 (Tri-Del). He further submits that as there is no amount is recoverable, interest is not liable to be recovered. There is no liability of interest. With these submissions, he prayed that the impugned order to be set aside. 15. On the other hand, Shri H.B. Negi, Ld. SDR for the revenue submits that the appellants had recovered the 10% of the Cenvat credit reversed on the exempted goods from their customers through commercial invoice, which forms the part of the consideration and on that 10% the appellants are liable to pay duty. To support of his contention, he reiterated the impugned order. 16. Heard. 17. On careful examination of the submissions made by both the parties, I find that the amount of Rs. 96,20,337/- recovered b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
