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TMI Blog2016 (5) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rules, is not justified. - Decided in favour of appellant - Excise Appeal No. : 465/2007 - Order No. : FO/A/75411/2016 - Dated:- 13-5-2016 - SHRI H.K. THAKUR, TECHNICAL MEMBER AND SHRI P.K. CHOUDHARY , JUDICIAL MEMBER For the Petitioner : Sri J.P. Khaitan, Sr. Advocate, Sri C.M. Ghorawal, Advocate Sri Saurav Bagaria, Advocate For the Respondent : Sri S. Mukhopadhyay, Supdt. (A.R. ORDER PER SHRI H.K. THAKUR This Appeal has been filed by the appellant against Order-in-Original No.3/COMMR/CE/Kol-III/2007-08 dated-22/05/2007 under which a demand of ₹ 3,10,14,076/-(Central Excise Duty) and ₹ 2,97,964/- (Education cess) has been confirmed by the adjudicating authority under Section 11D and 11DD of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lway on payment of Central Excise duty are given re-imbursement @ 16% of excise duty paid. That with respect to non-composite units the question of payment under Section 11D of the Central Excise Act, 1944, was settled by this Bench in the case of Bridge and Roof Co. (India) Ltd. Vs. CCE, Kolkata-II reported in 2008 (225) ELT 531 (Tri.-Kolkata), under which it was held that reimbursement of the excise duty paid on bogies/couplers, supplied to Indian Railways, cannot be confirmed under Section 11D of the Central Excise Act. 2.1 Ld. Sr. Advocate relied upon the Larger Bench decision in the case of Unison Metals Ltd. Vs. CCE, Ahmedabad -I reported in 2006 (204) ELT 323 ( Tri-LB). He made the Bench go through para 8 and 9 of this case law to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 8% of the value of the goods in terms of Rule 57CC at the time of removal of the goods from the factory. The amounts so paid are the amounts recovered by them from their buyers. Thus, in the present cases, no amounts collected from the buyers remain unpaid to the revenue, irrespective of whether those amounts were represented in the sales documents as duty or not. In fact, the invoices referred to the payment in different terms such as 8% reversal of assessable value , 8% value , 8% duty etc. As the amounts recovered from the buyers are not retained by the assessees, the question of deposit 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 col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not contemplated. We read para 97 of that judgment [Mafatlal Industries Ltd. - 1997 (89) E.L.T. 247 (S.C.)]: Meaning and Purport of Section 11D 97. It was contended by the learned counsel for the appellants-petitioners that Section 11D provides for double taxation. It was contended that sub-section (1) of Section 11D makes the manufacture liable to pay duty which he collects from the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and then remits the amount to the government. Section 11D has to be read keeping this scheme in view. Therefore, the provisions for every person who is liable to pay duty........ and has collected any amount from the buyer of any goods in any manner representing as duty of excise, shall forthwith pay the amount so collected to the credit to the Central Governmen has application only when equivalent duty 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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