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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 ..... availed Modvat credit. This was not accepted by the Revenue and hence they had filed an appeal before the Commissioner (Appeals) 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 duti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Section l1D are not applicable. 16. From the facts of the present case, it is seen that the assessees have not charged an 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of Rs. 5,12,495/- which was paid by the assessee voluntarily upon recalculation of 8% payable on the total price (inclusive 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 reiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope for any ambiguity on this score. The contentions of the respondents are not tenable and the case laws cited are not relevant to the issue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame is recoverable. 6. In counter learned counsel pointed out that 8% was added in the assessable value and on that duty has been paid. This has been 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 assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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