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TMI Blog2015 (9) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... mount was not being recovered by them their customers in excess of the value of the consignment of medicines covered in the invoice. Held that:- when admittedly the price fixed by DPCO is inclusive of excise duty as was the case in the matter of Hindustan Antibiotics Ltd. (2015 (1) TMI 1129 - CESTAT MUMBAI), as it is the same unit price fixed by DPCO which stands recovered by the appellants from their customers, the fact of reflection of separate duty element in the invoice, which does not stands collected from their customers will not make difference between the present case and the decision of the Tribunal in Hindustan Antibiotics Ltd. (supra). Accordingly, by following the above decision of the Tribunal, we are of the view that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value of the goods sold under the cover of their invoices. However, it is seen that apart from reflecting the total consideration of the sale, by applying the unit rate fixed under DPCO, they were also reflecting the element of excise duty. As per the appellants, the said mentioning of excise duty in the invoice so generated by them from the computer was on account of the software installed by them, which also reflected the excise duty as they were manufacturing goods and were paying excise duty. Otherwise, the element of excise duty as mentioned in the invoice was not added in the total cost of the medicines and the said amount was not being recovered by them their customers in excess of the value of the consignment of medicines covered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Antibiotics Ltd. (supra), we find that the Revenue's objection is that the appellant has indicated the excise duty element in their invoices. However, we find that though the appellants have indicated excise duty element in the invoice, for which they have explained that old software was loaded in the computers, but no extra amount on the said excise duty element reflected in the invoice stands added to the total value of the goods shown in the said invoice. It is also not the Revenue's case apart from the value of the consignments, by adopting DPCO rate the appellants have recovered the excise duty in excess of that. 6. At this prima facie stage, we are of the view that when admittedly the price fixed by DPCO is inclusive of ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded the duty amount from M/s Hindustan Antibiotics Ltd. on the ground that they had collected the excise duty from their customers. The findings in the order are that in the invoices, excise duty was not shown but medicines had been sold at the price fixed by NPPA/DPCO which was the price of inclusive of duty. 8. For better appreciation, the provisions of Section 11D (1A) of the Central Excise Act, which was considered in that case, are reproduced: Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nit rate of duty from any person in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter amendment, excise duty could not have been demanded from the trader. 10. What we have discussed and what we have heard mostly is on legal issues and we have not at all gone into the facts in detail as mentioned earlier. In this case, show-cause notice was issued on 9.5.2013 and the period covered in the show-cause notice is from 30.11.2007 to 31.7.2011. Therefore, total demand is beyond normal period of limitation and the issue of limitation is a mixed question of facts and law. 11. The appellant is a Public Sector Enterprise. The decision of the Tribunal in the case of Hindustan Antibiotics Ltd. (supra) would show that the issue involved is contentious and unless the entire facts are considered and the legislative history relati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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