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TMI Blog2018 (11) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... t was held that no evidence has been produced to indicate that they have shown an amount of duty more than the what they have paid to department in such assessment documents and collected such higher amounts and hence no case is made out for seeking recovery under Section 11D. In the present case, it is not in dispute that the appellant have not indicated in their invoices the amount of 8% separately as excise duty. Hence, in the line with the decision of the Tribunal, the demand cannot be sustained. The reference to Section 11D as it stood at the relevant time also makes it clear that the Section will have no application to exempted goods. Section 11D was made applicable to goods which are wholly exempted or chargeable to the ‘Nil’ r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment and other departments were on the basis of DGS D Contract, the appellant approached DGS D to revise the rate contracts. The rate contracts were revised and the appellant was allowed to make good the loss of 8% by recovering the said amount from their customers. This practice continued for the period upto 2004-2005. 2. During the period 2005-2006 and 2006-2007 (period of the present dispute) the appellant started maintaining separate accounts for the inputs used in the manufacture of dutiable goods as well as exempted ones and consequently stopped the payment of an amount @8%. But they continued to recover the amounts as per the rate contract, by merging the 8% into the value of the contract. The department investigated into the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Shyam Pulp and Board Mills Ltd. vs. CCE [2017(9) TMI 1058] c) CCE vs. Tapi Ltd. [2005(186)ELT 107(Tri.)] d) Todi Rubber Pvt. Ltd. vs. CCE [2018-TIOL-1646 Cestat-Mum] e) Poddar Industrial Corporation vs. CCE [2003(158)ELT 473(Tri.)] f) The Indian Hume Pipe Company Ltd. vs CCES [2018-TIOL-135-CESTAT-MAD]. iii) The above decisions have been relied upon to support the contentions that once the 8% amount is merged with the value of the exempted goods, this cannot be considered as amounts recovered towards excise duty. Consequently, ld.CA submitted that the provision of Section 11D would not be attracted. iv) Ld. CA further submitted that the provision of Section 11D, as it existed during the disputed period, would not be ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed goods, in terms of Rule 6(3) of the Cenvat Credit Rules, 2004, for non maintenance of separate accounts for inputs used in dutiable and exempted final products. The dispute however is not with reference to such payment of 8%. To compensate for the loss of 8% by reversal, the appellant started recovering such amounts from their customers. To this effect, they successfully re-negotiated the DGS D rate contracts. During the disputed period, even though no reversal @8% was required to be made by the appellant, they continued to recover the amounts @8% by merging it with the value charged from their customers. The records however clearly indicate that the invoices did not indicate such amounts @8% separately as recovery of excise duty. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While the contract has taken note of the prevailing rate of duty, i.e. it was indicated as up to 20% in some contracts, which obviously has taken into account that during the initial period of financial year, lower rate would be applicable, the contract envisaged a fixed price for the entire year. The price quoted was a cum-duty price. No evidence have been produced that the invoices raised for each consignment indicated certain duty amount and that the appellant has collected more than that amount from their customer. The contract with a view to fix the purchase price, has taken note of the prevailing rates of excise duty. It also specified that no extra amount would be payable on account of excise duty. In these circumstances, the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and collected such higher amounts and hence no case is made out for seeking recovery under Section 11D. Similar views have been expressed by the Tribunal in the other cases cited by the appellant and we do not find it necessary to repeat the observations of the Tribunal in other cases. 11. It is not in dispute that the appellant have not indicated in their invoices the amount of 8% separately as excise duty. Hence, in the line with the decision of the Tribunal (supra) we are of the view that the demand cannot be sustained. 12. The reference to Section 11D as it stood at the relevant time also makes it clear that the Section will have no application to exempted goods. Section 11D was made applicable to goods which are wholly exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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