9911796707
TMI Blog2013 (10) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 appellant debited an amount equal to 8% of the price in respect of generic products under the erstwhile Rule 57CC of the Central Excise Rules, 1944; that since the amount reversed at the rate of 8% of the price under Rule 57CC of the Central Excise Rules, 1944 is an adjustment of credit of duty tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispute as to the fact that appellant herein reversed the amount to be paid as 8% or 10% of the value of exempted goods having not maintained separate records for the inventories of common inputs utilised in manufacturing of dutiable and exempted final products. It is his submission that appellant cleared the exempted goods from the factory premises to the deport after reversing the amount of 8% of the value of the exempted goods and subsequently the said exempted goods were cleared to ultimate consumers from the retail chain. It is his submission that the products manufactured by the appellant are generic medicines and are meant for direct consumption. It is his submission that the Larger Bench decision in the case of Unison Metals Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Section 11D will apply in such a situation and assessee is required to pay over and above the amount debited in the cenvat account. 6. Learned counsel in rejoinder would submit that the issue involved in the present appeal is totally different than the issue which has been decided by the Hon'ble High Court of Gujarat in the case of Inductotherm India Private Limited inasmuch as, in the said decision the Hon'ble High Court was considering the issue as to whether the amount deposited by the appellant making a debit entry for the excess amount paid as duty is recoverable or not. It is his submission that the Larger Bench decision of the Tribunal is directly on the point. 7. We have considered the submissions made by both sides an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyer as part of the price of goods even where the manufacturer has already paid the duty at the time of removal. We do not think that there is any foundation for the said understanding or apprehension. There are no words in the section which provide for payment of duty twice over. All that the section says is this: the amount collected by a person/manufacturer from the buyer of goods as representing duty of excise shall be paid over to the State; even if the tax collected by the manufacturer from his purchaser is more than the duty due according to law, the whole amount collected as duty has to be paid over to the State; if on the assessment being made it is found that the duty collected and paid over by the manufacturer is more than the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not been deposited at the time of removal of the goods'. The scheme of the law is that manufacturers shall not collect amounts falsely representing them as central excise duty and retain them, thus, unjustly, benefiting themselves. In the present cases, (irrespective of whether the 8% payments were duty or not) since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, Section 11D has no application. 10. The real identity of the amount 'collected' (whether excise duty payable or not) is of no relevance for Section 11D. What is relevant is only whether the collection was 'represented' as duty of excise. The representation may as well be entirely false. The qualifying of the representation through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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