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TMI Blog2019 (3) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had recovered the Central Excise duty from their customers on the additional quantity generated because of blending of ethanol which was sold by the assessee at the same rates as that of the motor spirit ( MS). It is further recorded that Shri Subbaraj stated that since there was no advise from the head office, the central excise duty so collected from their customers was not paid to the credit of the Central Government. No doubt, as contended by Mr. Srivastava, Shri Subbaraj's statement has to be read in its entirety including the portions reflected in paras 5.1.2., 5.1.3., 5.1.4 as well as other material on record - In the present case, all that is observed is that there is no consideration of whatsoever of the statement made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944 is not applicable in this case, when it has not controverted the finding of fact by the adjudicating authority that the process undertaken by the assessee amounts to manufacture and whereby, the assessee becomes a person liable to pay duty, in terms of Section 11D of the Central Excise Act, 1944 read with Rule 4 of the Central Excise Rules,2002 and as such the finding of the CESTAT is perverse ? (b) Whether in the facts and circumstances of the case, the CESTAT was right in holding that Section 11D of the Central Excise Act, 1944, is not applicable in this case when the evidence on record clearly establishes that the assessee, being a manufacturer of EBP and liable to pay Central Excise Duty, have collected Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts of law. Penalty is impossible if duty is collected over and above the duty liable to pay and such excess amount is not deposited in treasury. That not being the present case, the demand levied under Section 11D is to be set aside. 5. Appeal is accordingly allowed. 5. Ms. Desai, learned counsel for the Appellant submits that in terms of Section 11D of the Central Excise Act, 1944 once it is established that the assessee has collected an amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the Rules made thereunder from the buyer of such goods, in any manner as representing duty of excise, then, such assessee shall forthwith pay the amount so collected to the credit of the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see during the disputed period. He points out that all that was collected was a composite price. 8. From the perusal of the impugned order made by the CESTAT, it is clear that the CESTAT has proceeded on the basis that the assessee in the present case had not collected any duty over and above the duty liable to be paid. On this basis, CESTAT concluded that the provisions of Section 11D of the said Act, which, even otherwise, are penal in nature, were not attracted. 9. The CESTAT, has however failed to even advert to, much less consider the statement of Shri Subbaraj as reflected in the order in original dated 31st August, 2007. In para 5.1.1., it is recorded that Shri Subbaraj, the representative of the assessee, on being asked stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y excise duty since the assessee is not at all involved in any manufacturing. Mr. Srivastava is right that the other evidence adduced even by the assessee is not considered in the impugned order. Since several aspects have also not been considered by the CESTAT or in any case the impugned order does not reflect that such aspects have been considered, we are constrained to set aside the impugned order and remand the matter for disposal afresh. 12. Accordingly, we set aside the impugned order dated 17th July, 2017 and remit the appeal No. E/1450/2007 to the CESTAT for disposal afresh in accordance with law and on its own merits. We clarify that our observations in this order are only prima facie and all contentions of parties are express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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