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TMI Blog2008 (2) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent. [Order per P. G. Chacko, Member (J) ] - This appeal filed by the assessee is against a demand of Rs.1,68,322/- under Section 11D r/w Section 11A of the Central Excise Act for the period 1.4.1995 to 6.10.1995 and also against a penalty of Rs.10,000/- imposed under Rule 173Q of the Central Excise Rules, 1944. The appellants were engaged in the manufacture of soda-makers [SH 8422.90 of the Schedule to the Central Excise Tariff Act] and were availing SSI exemption in terms of Notification No. 1/93-CE dated 28.2.1993 during 1995-96. About 70% of their production at Coimbatore Unit were transferred to their Head Office at Ernakulam and sold to various dealers and distributors. From the scrutiny of invoices raised by the head office, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/w Section 11A and proposing penalty under Rule 173Q. Apparently, the notice invoked the extended period of limitation under Section 11A for recovering the amount by alleging that the party had willfully suppressed the factum of having collected duty from their customers. The demand was contested mainly on the ground that the provisions of Section 11D were not applicable to the case inasmuch as any duty of excise had not actually been collected from the customers. The party also contended that, as there was no wilful suppression of facts by them and no intention to evade any duty, it was not open to the department to invoke the proviso under Section 11A. In adjudication of the dispute, the Addl. Commissioner confirmed the demand under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir claim that they did not actually collect any duty from their buyers during the period of dispute is that the price of the soda-makers remained the same even after the said period. This reasoning is no longer valid inasmuch as it is settled law that, merely on account of price having remained the same, it cannot be held that the incidence of duty was not passed on to the buyer. Thus the evidence on record is against the appellants vis-a-vis the demand under Section 11D of the Central Excise Act. 3. Turning to the plea of limitation raised by the appellants, we find that there was no limitation provision under Section 11D and there was even no mechanism provided under Section 11D for recovery of any duty of excise collected by a person f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argument of learned counsel that, in view of the Hon'ble Supreme Court's decision in J.K. Spinning and Weaving Mills Ltd. And Another Vs. Union of India and Others- 1987 (32) ELT 234 (SC) [wherein the extended period of limitation under the proviso to Section 11A(1) of the Central Excise Act was held to be inapplicable to assessees who were hit by the retrospective amendments made to Rules 9 and 49 of the Central Excise Rules, 1944], the larger period of limitation under Section 11A would not be available to the Revenue in this case for recovery under Section 11D is also unsustainable. The provisions for determination of the amount due to the Revenue from a person under Section 11D and for recovery of the same from such person were introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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