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TMI Blog2010 (2) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... was liable to be recovered under Section 11A and ₹ 4,41,061.33 was recoverable under Section 11D of the said Act, that Ld. Authority in para-15 of the appeal order dated 13.1.2006 also held that so far as payment of ₹ 15,642/- under Section 11A is concerned, the Appellant was liable to interest under Section 11AB. However he held that so far as recovery under Section 11D is concerned, the assessee is not liable to interest for the period prior to the Finance Bill, 2003 receiving the assent of the President. 2. On the above background, a show-cause notice dated 2.4.2007 was issued to the present assessee-appellant for recovery of an amount of ₹ 3,01,642/- under Section 11D of Central Excise Act, 1944 with consequential p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy through cash payment or adjustment in PLA account is called for. If assessee is still called for to pay the above amount that shall be absurd. But the appellant does not dispute that the show cause notice was issued on the basis of appellate order dated 13.1.2006 in Appeal Case No. 13, 14 15-CE/BPL/2006. But merely disputes the fact that when liability arising under Section 11D is discharged through Cenvat credit that shall not be deniable. It is also contended on behalf of appellant that if the show-cause notice proceeded under Rule 14 of the Cenvat Credit Rules 2004 making an allegation of wrong utilisation of the Cenvat credit there cannot be recovery under Section 11D of the Central Excise Act 1944. It is further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be recovered through Cenvat credit. There was also proposal for penalty and interest in the show cause notice itself. However these two consequences shall be subject to the appellate finding in para 15 and 16 of the appeal order dated 13.1.06. There was no jurisdiction for any authority to travel beyond the appellate finding made in terms of para-15 and 16 of the appellate order dated 13.1.06. When the assessee resorted to debit the Cenvat credit account to discharge the liability of ₹ 3,01,642/- which is attributable to Section 11D of Central Excise Act, 1944 that does not acquire a character of duty element but being excess amount collected by the assessee became recoverable under the provisions of Section 11D read with other rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when an assessee collects any money not in the nature of duty which is required to be forthwith payable to treasury so that the assessee is not unjustly enriched at the cost of public. Such debarring provision disentitles an assessee to be benefited out of excess amount collected. Such collection should not be construed to be duty collected when the very nature was determined by the appellate order dated 13.1.06 and that remained undisputed. The scheme of law is that ultimate duty which is payable under Section 3 of the Central Excise Act, 1944 is recovered as duty through various provisions scattered in the body of the Code itself and through its Rules. Therefore the preamble to the statute which is taken as shelter to argue that recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g used and used to result emergence of excisable goods through the process of manufacture. Accordingly the duty liability payable on output get set off against credit earned by inputs. Thus a liability having no characteristic of duty is not payable through the Cenvat scheme. In order to realise the excess amount collected by an assessee not as duty under Section 11D comes into play to debar such unjust enrichment. Once that section operates declaring the recovery to be of non-duty nature, the amount collected in excess by an assessee is not eligible to be discharged through the process of Cenvat Credit Rules, 2002. 9. Ld. Counsel argues that the recovery was contemplated through invoking Rule 14 of Cenvat Credit Rules 2002 without Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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