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TMI Blog2013 (12) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... s determined under Section 3A of the Central Excise Act read with Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998 read with Rule 96ZQ of the Central Excise Rules, 1944. The respondents were paying duty as determined under the above mentioned provisions. A show cause notice was issued demanding duty under Section 11D of the Central Excise Act, 1944 on the ground that the respondent collected more duty than paid to the Central Government. The case of the Revenue is that as per the provisions of Section 11D of the Act, every person who is liable to pay duty under the Act or rules and has collected any amount in excess to the duty assessed or determined or paid on any excisable goods under the Act or Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. vs. UOI reported in 1997 (89) ELT 247 (SC), particularly para 97 of the judgment. The decision of the Hon'ble Supreme Court in the case of Mafatlal Industries Ltd. (supra) is followed by the Tribunal in the case of Gini Silk Mills Ltd. vs. CCE, Thane reported in 2007 (209) ELT 81. The Revenue filed appeal against the decision of Gini Silk Mills Ltd. and the Hon'ble Bombay High Court in the order dated 10.7.2008 in Central Excise Appeal NO.171/2007, following the decision of the Hon'ble Supreme Court in the case of Mafatlal Industries (supra) held that in absence of element of sale, the provisions of Section 11D are not applicable. The contention is that the ratio of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessors of manmade fabrics availing the facility of payment of central excise duty under the compounded levy scheme as provided under erstwhile Rule 96ZQ of the Central Excise Rules, 1944, read with the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998) on job work basis and cleared to merchant manufacturers were covered by clause (iv) of the second proviso to Rule 173C(1), being goods removed in a manner which did not involve sale. The contention of the appellants that the provisions of Section 11D are not attracted in cases where goods are removed/cleared without effecting their sale, therefore, has substance, in the light of the apex court's decision in paragraph 97 of the judgment in Mafatlal Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the debit notes, and not duty of excise. We have perused some debit notes and find that they clearly state that the processor has debited the account of the merchant manufacturer on account of handling and service charges. It is also clear from the statements of the merchant manufacturers (one such statement is that of Shri Rajendra N. Dave, partner of M/s. Binal Textiles) that prior to the commencement of the compounded levy scheme the appellants were raising commercial bills to recover processing charges and separate invoice was raised by them for collection of excise duty and no debit notes were separately raised for the collection of any charges but after the introduction of such scheme, they continued to collect processing charg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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