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TMI Blog2013 (10) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... aid and collected the amount as excise duty - the appellant never indicated the amount paid by them as excise duty – order set aside – Decided in favour of Assessee. - Appeal No. : E/160 & 161 of 2007 - - - Dated:- 15-10-2013 - Mr. M.V. Ravindran and Mr. H.K. Thakur, JJ. For the Appellant: Shri J.C. Patel, Advocate For the Respondent : Shri Manoj Kutty, A.R. JUDGEMENT Per: Mr. M.V. Ravindaran; These two appeals are directed against Order-in-Appeal No. 344 to 345/2006(Ahd-II)CE/Raju/Commr(A) dated 22.12.2006. 2. Since both the appeals raised a common question and in respect of the very same assessee, we dispose of the appeals by a common order. 3. Brief facts of the case is that the appellant is engaged in the manufacture of Pharmaceutical products falling under Chapter No. 30 of Central Excise Tariff Act, 1985 and has availed modvat credit on the specified inputs used in the manufacture of both generic medicines as well as P.P. medicines. The generic medicines were exempted prior to 02.6.1998 and P.P. medicines were chargeable to duty. Keeping common accounts for the inputs used in the manufacture of dutiable as well as exempted final products, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generic medicines and are meant for direct consumption. It is his submission that the Larger Bench decision in the case of Unison Metals Limited was followed by this Bench in the case of Viral Control Private Limited 2009 (230) ELT 681 (Tri. Ahmd.) and in Ralish Pharma Limited in final order No. A/1706/WZB/AHD/2012 dated 13.12.2012. It is also his submission that the Larger Bench decision was also followed by the coordinate Bench of the Tribunal in the case of Bharat Heavy Electricals 2012 (286) ELT 256 (Tri. Ahmd.). 5. Learned departmental representative on the other hand would draw our attention to the invoices issued by the appellant and submitted that in the said invoices the appellant did not indicate separate payment of the 8% of the value. After making such submission, he would take us through invoices issued by the appellant for the clearances of the goods to their depot and submit that on the invoices it is categorically mentioned as percentage of excise duty. It is his submission that the appellant herein had indicated on the duty paying duty as collection of excise duty of an amount which is 8% of the value of the exempted goods which they are not supposed to do so. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the sales documents as duty or not. In fact, the invoices referred to the payment in different terms such as 8% reversal of assessable value , 8% value , 8% duty etc. As the amounts recovered from the buyers are not retained by the assessees, the question of deposit cannot arise, whether under Section 11D or any other provision. A reading of Section 11D makes it clear that what is required is that amounts collected as duty should not be retained by the manufacturers and should be deposited with the revenue. This was the view that Division Bench took in the case of Nu-Wave shoes. We may read the relevant part of that order: Admittedly, Rule 57CC (1) is applicable in the present case. It is not the case of the Department that the assessees have been charging an amount over and above 8 of the price of the exempted variety of footwear from their customers and in fact, the show cause notice proceeds on the basis that only the amount reversed by debit in the credit account from 1-9-1996 to April, 1997 has been charged from the customers. For the period 23-7-1996 to 31-8-1996, the show cause notice itself recognises that the assessees have been reversing Modvat credit prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is not relieved of the obligation to pay the full duty according to law. This is the general purport and meaning of Section 11D. These may be case where goods are removed/cleared without effecting their sale. In such a case Section 11D is not attracted. It is attracted only when goods are sold. The purport of this section is in accord with Section 11B and cannot be faulted. 9. The scheme of Central Excise duty payment is that a manufacturer removed goods from the factory of production after payment of duty. While selling the goods, the manufacturer recovered the duty so paid. In doing so, an assessee is recouping the tax already paid. The arrangement is not that the assessee first collected the tax from the buyer of the goods and then remits the amount to the government. Section 11D has to be read keeping this scheme in view. Therefore, the provisions for every person who is liable to pay duty and has collected any amount from the buyer of any goods in any manner representing as duty of excise, shall forthwith pay the amount so collected to the credit to the Central Government has application only when equivalent duty had not been deposited at the time of removal of the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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