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TMI Blog2018 (6) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ypes of paper and paper film which are dutiable as well as exempted. The appellant reversed the amount of 8% of the value of exempted goods in the Cenvat credit account and also charged as duty from their buyers, which was shown in the invoices. The Revenue is of the view that, as the appellant has recovered 8% of the value of exempted goods as duty from the buyers therefore, they are required to pay the said amount in terms of Section 11D of the Central Excise Act, 1944. In these set of facts, the show cause notice was issued, matter was adjudicated and demand in terms of section 11D of the Act was confirmed. Against the said order, the appellant is before us. 3. Heard the parties. Considering the fact that a similar issue has come up bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e show cause notice proceeds on the basis that only the amount reversed by debit in the credit account from 1-9-1996 to April, 1997 has been charged from the customers. For the period 23-7-1996 to 31-8-1996, the show cause notice itself recognises that the assesses have been reversing Modvat credit proportionately on a prorata basis on inputs used in the manufacture of exempted variety of footwear and that the amount so reversed has been charged from the customers. A perusal of the invoices placed on record clearly shows that they have debited their RG 23A account while paying 8% under Rule 57CC and some invoices show debit entry in their PLA. This makes it clear that the appellants have not retained the amount collected from the customers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it is found that the duty collected and paid over by the manufacturer is more than the duty due according to law, such surplus amount shall either be credited to the Fund or be paid over to the person who has borne the incidence of such amount in accordance with the provisions of Section 11B. It is obvious that if in a given case, the manufacturer has collected less amount as representing the duty of excise than what is due according to law, he is not relieved of the obligation to pay the full duty according to law. This is the general purport and meaning of Section 11D. These may be case where goods are removed/cleared without effecting their sale. In such a case Section 11D is not attracted. It is attracted only when goods are sold. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0% is paid to the Government in terms of erstwhile rule 57CC of the Central Excise Rules, 1944 or rule 6 of the CENVAT Credit Rules, the provisions of section 11D shall not apply even if the amount is recovered from the buyers. However, it may be noted that the CENVAT credit of the said amount of 8% or 10% cannot be taken by the buyer since such payment is not a payment of duty in terms of rule 3(1) of the CENVAT Credit Rules, 2004. Therefore, the said 10% amount should be shown in the invoice as "10% amount paid under Rule 6 of the CENVAT Credit Rules, 2004". 4. As the issue has already been settled that the amount collected from the buyers has already stand paid by the appellants, the provisions of Section 11D of the Act are not applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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