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TMI Blog2006 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ) who in his order has reversed the findings in OIO and has taken a view that the appellant had collected 8% representing as duty and hence the same is required to be deposited with the Govt. in terms of Section 11D (2) of C.E. Act 1944. For the purpose of dealing with this appeal it is necessary to extract the relevant findings given by the Joint Commissioner in OIO which the assessee wants it to be confirmed. The findings given in Para 15 to 20 are extracted herein below. 15. It is a fact that the provisions of Rule 57CC provide that where a manufacturer engages both in the production of fully exempted and dutiable final products, if he does not maintain separate account and takes credit of the inputs which go into the exempted products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n amount over and above 8% of the price of the exempted goods from their customers and in fact the show cause notice acknowledges that only the amount reversed by debit in the credit account has been charged from their customers. If they have collected so i.e. over and above 8% of the price of the exempted goods from their customers, the violation of the provisions of Section l1D would come into operation and the amount so collected should be paid to the Government. 17. Therefore, it is quite evident that to attract provisions under Section l1D, first of all, the assessee should be liable to pay duty under the Act and then there should be an excess collection of amount oven and above the duty assessed or determined and paid. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the value of clearance + 8% duty) of exempted goods. This appears to be correct as it maintains the spirit of Rule 57CC to the word and detail and is in order. Thus there is no dispute with regard to 8% payable by the assessee. In view of the foregoing, I pass the following order: ORDER I drop further proceedings initiated in the show cause notice OR No.213/2002-Adjn. dated 3-12-2002. 2. The above findings were set aside by the Commissioner (Appeals) in the impugned order. The finding recorded in paras 6 & 7 are reproduced herein below. "6. The respondents were heard on 17-06-2005. They reiterated the written submissions already made. I have gone through the records of the case, grounds of appeal, memorandum of cross objections an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue on hand and therefore will not come to their rescue. 7. In view of the above findings, I hold that the respondents are liable to pay duty of Rs. 5,12,495/- (being the amount collected in the guise of excise duty during 1997-98 and 1998-99 (up to 5/98) from the buyers but not paid to the department and they are also liable to pay duty of Rs. 1,03,049/- being the amount collected in the guise of excise duty on the clearance of exempted product Tetracycline during 1997-98 from buyers but not paid to the department in terms of Section 11D(2) of the Central Excise Act, 1944. The respondents should pay the above amounts forthwith. I refrain from taking any further action against the respondents as no specific proposals were made against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted in the OIO and if the appellants are required to pay further amount then it would amount to double taxation which is not permissible. 7. On a careful consideration, we notice that the Commissioner has not followed the Tribunal Ruling rendered in the case of Nu-wave Shoes v. CCE and in the case of CCE v. Megatech Controls cited supra. The Joint Commissioner in the OIO has clearly analyzed the matter. He has also noted that provisions of Section 11D are not challenged. He has noted that there was no assessment of duty nor there was a determination and duty had not been paid. The assessee had paid 8% in terms of Rule 57CC which is not duty. The Tribunal in the noted judgments has clearly upheld these findings. This bench in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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