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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 ..... uch pipes to various water supply projects executed by Public Health Departments, Municipal Corporations etc., by availing the Exemption Notification No.6/2002 dated 01.03.2002, on the basis of certificates issued by the competent authority in the respective departments. Since the appellant also supplied the pipes without availing the benefit of the notification as above and since cenvat credit was availed on inputs, they were required to pay an amount @ 8% of the value of the exempted goods, in terms of Rule 6(3) of the Cenvat Credit Rules, 2004. This resulted in the appellant incurring cost to the extent of 8% of the value of the pipes. Since most of the supply of pipes to Public Health Department and other departments were on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eti, CA for the appellant as well as Shri H.S.Abedin, AC(AR) for the respondent. 5. Ld. CA made elaborate arguments covering the following main points; i) Ld. CA submitted that the work orders were based on the rate contracts approved by the DGS&D. Even though such rates were revised taking into account the loss of 8%, such amounts have not been recovered by showing the same in the invoices issued as excise duty. The amounts stand merged as part of the total value recovered from the customers. This fact has also been acknowledged by the adjudicating authority. ii) Ld. CA relied on the following decisions; a) Mayfair Polymer Pvt. Ltd vs. CCE [2009(234) ELT 663] b) Shree Shyam Pulp and Board Mills Ltd. vs. CCE [2017(9) TMI 1058] c) C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be set aside. 6. Ld. DR justified the impugned order. He submitted that the amount @8% has been collected from the customers even though the appellant was not required to pay such amount in terms of Rule 6(3) of the Cenvat Credit Rules, 2004, during the disputed period. However, he fairly conceded that the appellant, in their respective invoices issued for the exempted clearances, had not indicated the amount of 8% as excise duty. 7. Heard both sides at length and perused the appeal records. 8. The dispute covers the period 2005-2006 to 2006-2007. For the period prior to this, the appellant was required to pay an amount @8% of the value of the exempted goods, in terms of Rule 6(3) of the Cenvat Credit Rules, 2004, for non maintenance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly considered the submissions from both sides. As the assessee has availed the exemption available to small scale unit, they were paying at different rates during the course of each financial year, depending upon the actual clearances effected by them. In the normal course, when the rates depending upon value of clearances, the assessee would have collected the price and applicable rate of duty in which case, the sale price would be different depending upon the actual rate of duty during the course of year. The assessee has chosen to supply to their customer at a fixed price, in terms of the contract, for the supplies made during the entire year. While the contract has taken note of the prevailing rate of duty, i.e. it was indicated as up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwith pay the amount so collected to the credit of the Central Government." 9. While the contract might have indicated the ruling rates of excise, the excise duty collected should be with reference to the document mentioned in Section 12A of the Central Excise Act viz. document relating to assessment as well as invoice and other like documents where the assessee was required to indicate the excise duty payable at the time of clearances of the goods. In the present case, 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." Similar vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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