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TMI Blog2023 (7) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Section 11D would be attracted only when it is established that the Appellant has collected more than Rs 14,76,04,018/- as Clean Energy Cess from the customers - the investigation has not established any such excess collection by the Appellant over and above the amount of Rs 14,76,04,018/- of Clean Energy Cess already paid by the Appellant. The Appellant has paid Clean Energy Cess @ Rs 50 per MT on the quantity of raw coal of 29,50,080 MT amounting to Rs.14,76,04,018. After processing in the Washery, the Clean Energy Cess is chargeable only on the Clean Coal, as there is no Clean Energy Cess on the other products emerge in the Washery. Thus, the Appellant has to collect the amount of Rs 14,76,04,018/- paid on 29,50,080 MT of raw coal from 16,78,729 MT of Clean Coal cleared from the Washery - it is observed that the Clean Energy Cess collected by the Appellant from their customers was much less than the amount of Clean Energy Cess actually paid by them on the raw coal. The demands confirmed in the impugned order under Section 11D of the Central Excise Act , 1994 is not sustainable. Accordingly, the demand of interest under Section 11DD is also not sustainable - Appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the demand made in the Notice was confirmed along with interest, vide Order-in-Original dated 19.04.2018. The Appellant is before us against this impugned order. 7. In their submissions, the Appellant stated that they have already paid Clean Energy Cess @ Rs. 50 Per MT amounting to Rs. 14,76,04,018/ on the quantity of 29,50,080 MT of raw coal extracted during July 2010 to March 2013. The raw coal extracted has been dispatched from the mines to the Washery plant. In the Washery, the raw coal was converted into four different varieties of coal namely, Clean Coal (yield of slurry and reject is 22%), WCP (yield Approx 35%), Slurry and Reject-by Product (Yield of slurry and reject is 22%). They stated that the above said different varieties of coal on clearance from the Washery are exempt from levy of Clean Energy Cess , as the Cess has already been paid on the raw coal extracted from the mines, as per Notification 4/2010 dated 22.06.2010. 8. The Appellant stated that the Notice has demanded excess collection of Clean Energy Cess against sale of Clean Coal as per presumptive calculation and presumed recovery of Clean Energy Cess of Rs. 12,30,00,478 on 16,78,729 MT of Clean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order, the Adjudicating authority has presumed this differential MOU price for the financial year 2010- 11 @ Rs. 73.27 per MT, as deemed excess collection of Clean Energy Cess for the period of July 2010 to March 2013. Accordingly, the Appellant contended that no excess collection of Clean Energy Cess was made during the relevant period and hence the impugned order cannot be sustained. 11. The Ld A.R reiterated the findings of the adjudicating authority in the impugned order. 12. Heard both sides and perused the appeal records. 13. We observe that as per Rule 6(1) of Clean Energy Cess Rules 2010, Cess is payable on the raw coal removed from the mines @ Rs 50/- per MT by 5th of the succeeding month. In this case, there is no dispute that the Appellant has already paid Clean Energy Cess amounting to Rs. 14,76,04,018 on the gross quantity of raw coal of 29,50,080 MT extracted from the mines during the period July 2010 to March 2013. 14. We observe that Notification No 4/2010 Dated 22nd June 2010 exempts levy of Cean Energy Cess on clean coal if the Cess is already paid on the raw coal on extraction and removal from the mines. For ready reference, the said Notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 was signed on 04.05.2011 and for Financial Year 2011-12, the MOU was signed on 20.-7-2012. Accordingly debit notes were raised @ Rs. 73.27 for realization of increase MOU price for the supply made during Financial Year 2010-11 and also credit notes were issued for April 2011 to August 2012 based upon the Final MOU of FY 2011-12. In the impugned order, the Adjudicating Authority has presumed this differential MOU price for financial year 2010-11 @ Rs. 73.27 per MT, as deemed collection of Clean Energy Cess for the period of July 2010 to March 2013. However, while presuming to the differential rate of price increase @ Rs. 73.27 per MT on the Clean Coal, the Ld. Adjudicating Authority has totally overlooked the basic spirit of levy of Clean Energy Cess: a) Clean Energy Cess is not leviable on exempted goods b) Clean Energy Cess rate is fixed on cleared quantity and not on the agreed price between buyers and sellers. 17. We observe that the basis of calculation of differential Clean Energy Cess Rate @ Rs. 73.27 per MT on Clean Coal, in the impugned order is only on the basis of a presumption that this amount collected separately was on account of Clean Energy Cess. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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