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TMI Blog2017 (8) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... which are exempted as per the Notification No. 5/99-CE and Notification No. 06/2002, the appellant has already paid the duty @ 8%/16%. The case of the Revenue is that the said duty is required to pay to the Department under Section 11D of the Act. In fact, it is fact on record that the amount which has recovered by the appellant from the buyers towards the duty has already been paid to the Department. This fact is not in dispute, therefore, under Section 11D of the Act, no demand is sustainable against the appellant. As regards the issue that the appellant is required to reverse the 8% of the value of the exempted goods, As it is fact on record that the appellant whatever duties they recovered from the buyers have been paid to the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax and other taxes) from their Cenvat Credit account or current account at the time of clearance of exempted goods as required under Rule 6 (3)(b) of the Cenvat Credit Rules, 2002. Therefore, it was alleged that the appellant has cleared the above mentioned medicines clandestinely during the period March, 2003 to July, 2004 without reversing the Cenvat Credit @ 8% as required under Rule 6 (3)(b) of the Cenvat Credit Rules, 2002. The appellant did not inform to the Department whether the above named medicines were manufactured out of the dutiable inputs or non dutiable inputs. Further it was revealed that the appellant was also manufacturing and clearing Acetazolamide Tablets, Isoniazide Tablets, Bruquine, Chloroquine Phosphate, Atropine Sul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals). The Ld. Commissioner (Appeals) dismissed the appeal filed by the appellant. Aggrieved from the said order, the appellant is in appeal. The Ld. Commissioner (Appeals) separately dealt with the appeal filed by the Revenue and enhanced the penalty. Aggrieved from the said order also, the appellant is in appeal. Hence, these appeals. 3. The Ld. Counsel for the appellant submits that the appellant has already reversed the Cenvat Credit attributable to the exempted goods, therefore, they are not required to pay an amount equivalent to 8% of the exempted final goods. With regard to the 3 medicines, the appellant has already paid an amount equivalent to 6% as required under Rule 6(3) of the Cenvat Credit Rules, therefore, they are not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reversed in view of the decisions of the Hon ble Apex Court in the case of Orissa Extrusions Vs. CCE - 2000 (115) ELT 30 (SC) which was later reversed by the Hon ble Apex Court in the case of Amrit Paper Vs. CCE - 2006 (200) ELT 365 (SC) , therefore no penalty is imposable on the appellant. 4. On the other hand the Ld. AR opposed the contention of the Ld. Counsel and submits that as the appellant is required to reverse the 8% of the amount if they have taken the credit on the inputs and the same has been paid by the appellant as duty. Therefore, whatever the duty paid by the appellant and recovered from the buyer is to be deposited under Section 11D of the Act with the Department. It is his further contention that as the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is required to reverse the 8% of the value of the exempted goods. We have gone through the show cause notices and there is no such demand in the show cause notice against the appellant for reversal of 8% of the value of exempted goods, therefore, the argument advanced by the Ld. AR is not acceptable. As it is fact on record that the appellant whatever duties they recovered from the buyers have been paid to the Department, therefore, no demand is sustainable under Section 11D of the Act. Accordingly, the said demand is also set aside. The said view has been supported by the decision of Larger Bench of this Tribunal in the case of Unison Metals Ltd. Vs. CCE (supra) wherein the Larger Bench of this Tribunal observed as under:- 8. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise duty and retain them, thus, unjustly benefiting themselves. However, in case of payments made under erstwhile rule 57CC(1), section 11D of the Act is not applicable since the amount of 8% or 10% has already been paid to the revenue and no amount is retained by the assessee. The said order of the Tribunal has been accepted by the Department. 3. The matter has been examined. Sub-rule (3) of rule 6 of the CENVAT Credit Rules, 2004 has been amended w.e.f. 01.04.2008 to provide for payment of an amount equal to 10% of value of the exempted goods, instead of 10% of the price of the exempted goods as provided earlier. The value is to be determined as per section 4 or 4A of the Central Excise Act, 1944 read with rules made thereunde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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