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TMI Blog2018 (7) TMI 415X X X X Extracts X X X X X X X X Extracts X X X X ..... Sahkari Chini Mills Ltd. [2011 (5) TMI 430 - CESTAT, NEW DELHI] has held that the amount collected as incentive cannot be recovered u/s 11D of Central Excise Act. Appeal allowed - decided in favor of appellant. - E/EH/154/2012, E/170/2012 - FINAL ORDER No. 41752/2018 - Dated:- 13-4-2018 - Ms. Sulekha Beevi C.S. Member (Judicial) and Shri Madhu Mohan Damodhar, Member (Technical) Shri P.C.Anand, C.A. For the Appellant Shri A.Cletus, ADC (AR) For the Respondent ORDER Brief facts are that the appellants who are manufacturers of sugar had commenced production during 1986 and were registered under the Central Excise Department for manufacture of sugar. The Central Government had given certain incentive schemes during 1987 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se department issued various notices to the sugar industries proposing to recover the incentive alleging that it is excise duty. 1.3 The appellant was also issued Show cause notices for various period from 20/9/1991 to 31/1/1994 proposing to demand the extra money collected by them under the guise of excise duty invoking Section 11D of the Central Excise Act. After due process of law, the original authority confirmed the demand of ₹ 1,49,99,292/- being the duty collected as incentive by the appellants for the period 1/10/1991 to 31/1/1994. Hence this appeal. 2. On behalf of the appellant, the Ld.Consultant, Sh.P.C.Anand submitted that the excise duty applicable for levy sugar is always low, when compared to the excise duty for f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e element collectable by the sugar factory, the excise duty in terms of the gate pass and other commercial details such as freight etc. The invoices raised from 2.5.1992 had the element of incentive added to the value of sugar sold. 2.2 In terms of Section 11D, the only representation made by the appellant towards the duty payment would only be, in the gate passes in which the exact amount of duty paid to the department was mentioned. No additional amount was realised and mentioned as excise duty. The additional amount realised under the scheme was clearly shown as incentive. In fact this is admitted in the show cause notice, wherein it is stated that ₹ 33/- is collected in the form of incentive. 2.3 He submitted that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch payment is not sustainable by invoking Section 11D of Central Excise Act, 1944. He relied upon the decisions in the case of Kisan Sahkari Chini Mills Ltd. vs. Commissioner of C.Ex., Meerut-II, 2011 (273) E.L.T.289 (Tri. Del.) and Shakthi Sugars Ltd. vs. Commissioner of C.Ex., Bhubaneswar-I, 2007 (217) E.L.T.222 (Tri. Kolkata). 3. The Ld.AR, Sh.A.Cletus supported the findings in the impugned order. He submitted that the appellant have collected incentive of ₹ 33/- per quintal upto 30/4/1992 by raising invoices. This is in addition to the excise duty collected. After 30/4/1992 till 31/1/1994, they have added the said incentive of ₹ 33/- to the cost of sugar. He explained that when normal free sugar was sold at a cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these documents, it is collected as excise duty. After such date, they have added the amount in the cost of sugar. Thus after 30/4/1992 till 31/4/1994, the same is collected as part of the cost of sugar and not as incentive or excise duty. From the report, it is brought out that the appellants have not collected any amount representing excise duty, other than the excise duty which they have already paid to the Government. The demand has been raised alleging that the appellants have collected the amount representing excise duty. As already stated, the invoices/gatepasses show otherwise. The Tribunal in the case of Shakthi Sugars Ltd. as well as Kisan Sahkari Chini Mills Ltd. (supra) has held that the amount collected as incentive cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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