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TMI Blog2009 (9) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... otal sale proceeds i.e. ₹ 10,58,23,702/- received from the Customers. Further, the demand which has been raised earlier, it cannot be presumed that the department would be aware that in subsequent period also the appellants would be recovering additional amount by separate commercial invoice of the different series. It is clear from the records that if the appellants did not want to suppress the facts, there was no reason to recover the said amount by a separate commercial invoice of a different series rather than the invoice under which the goods were purportedly sold. So, the appellants are liable to pay duty on the amount recovered subsequently through commercial invoices. Appeal dismissed - decided against appellant. - E/1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of Cenvat credit) would have to be calculated on the total price charged from the buyer. 6. During the period from 28-3-2005 to 6-9-2005 the appellants have cleared EOT Cranes in knock-down condition to the said Space Centre and DRDO. In addition to the amount of Rs. 9,62,03,365/- charged by the appellants on invoice, they have charged and collected Rs. 96,20,337/- by way of commercial invoices in the form R-l series. Therefore, the total amount collected from their customers was Rs. 10,58,23,702/-, in view of rule 6(3)(b) of Cenvat Credit Rules, 2004. The appellants have short reversed the amount of Rs. 9,62,033/-. 7. A show cause notice was issued alleging that the appellant has contravened the provisions of Rule 6(3)(b) of Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amounts are paid to the Government and there is no retention of the same by the seller. The money consideration received for the sale of the goods themselves is the price and in the present case, the money consideration for sale of goods is Rs. 9,62,03,365/- only and 10% of the sale price has already been paid by the appellants under Rule 6(3)(b) of the Cenvat Credit Rules, 2004. He further submits that the amount equal to 10% of the price of the exempted goods shown on the invoice of the EOT Cranes is paid by them in terms of Rule 6(3)(a). The amount paid in terms of Rule 6(3)(a) of the Cenvat Credit Rules, 2004 is an adjustment of Cenvat Credit as the appellant are liable to pay equivalent to the duty paid on the inputs used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Act or the Rules made there under with intent to evade payment of duty and in fact there is no fraud, collusion, suppression of fact, wilful mis-statement, contravention of any of the provision of the act or the Rules made there under with intent to evade payment of duty and he further submits that the department had full knowledge that the appellants are collecting from the buyers the amount, which was paid by them in terms of the said Rule 6(3)(b). In support of this contention he placed reliance on Pahwa Chemicals Pvt. Ltd. v. CCE, Delhi, 2005 (189) E.L.T. 257 (S.C.). 14. The Ld. Advocate further submits that they have neither taken nor utilized the credit in respect of inputs and/or capital goods wrongly on account of frau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant earlier. So, the appellants has recovered the total amount against the EOT Cranes was Rs. 10,58,23,702/- and the appellant is liable to reverse the Cenvat credit @ 10% of the total sale proceeds i.e. Rs. 10,58,23,702/- received from the Customers. Further, the demand which has been raised earlier, it cannot be presumed that the department would be aware that in subsequent period also the appellants would be recovering additional amount by separate commercial invoice of the different series. It is clear from the records that if the appellants did not want to suppress the facts, there was no reason to recover the said amount by a separate commercial invoice of a different series rather than the invoice under which the goods were pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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