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TMI Blog2024 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... - CEGAT, NEW DELHI ] where it was held that ' there is not an iota of evidence on record that in the instant case, the appellants had Collected the amount from the buyers as representing excise duty. As observed above, in their invoices against column BED, they had put a X which indicated that they had not accepted any amount representing as excise duty from the buyers. Whenever, they had collected earlier to the availment of the exemption from payment of duty under the notification in question, they had separately shown the rate of duty recovered from the buyers of the goods, against the column BED. This fact is quite evident, as discussed above, from the copies of the invoices placed on the record by the appellants. Therefore, the provisions of Section 11D of the Act could not be Invoked against the appellants.' Time Limitation - HELD THAT:- It is found that no statutory period is prescribed for recovery in Section 11D but Punjab and Haryana High Court in the case of CCE, Chandigarh Vs. Hari Concost Pvt. Ltd [ 2009 (4) TMI 170 - PUNJAB AND HARYANA HIGH COURT] after relying upon the judgment of the Hon ble Apex Court in the case of CCE Vs. Bharat Sanchar Nigam Ltd. [ 2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 11D is not applicable as no amount representing as duty of excise has been recovered from the buyer. He further submits that the goods were exempted under Notification No. 50/2003 which was clearly mentioned on the invoices and against the column of B.E.D @ 16% the word exempted has been mentioned; after following the due process, the original authority confirmed the demand. Aggrieved by the said order, the appellant filed before the Commissioner (Appeals) who upheld the Order-In-Original. Hence, the present appeal. 4. Heard both the parties and perused the material on record. 5. Ld. Counsel submits that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and binding judicial precedents. He further submits that Section 11D is applicable only where any amount over and above the assessed amount has been charged from the customers representing as duty of excise. Whereas, in the present case, no amount has been charged from the customers by representing it as duty of excise. He further submits that on the invoices issued after 24.01.2004 it is mentioned Exempted under Notification No.50/03-CE dt. 10.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that Section 11D is not applicable in the present case as no amount representing as duty of excise has been recovered from the buyer. Further, we find that on the invoices issued after 24.01.2004 after date of availing of area based exemption, the appellant has subsequently mentioned on the invoices Exemption Notification No. 50/03-CE dated 10.06.2003 and against the column of B.E.D @ 16% the word exempted specifically mentioned which clearly shows no amount has been charged from the customers representing as duty of excise. This issue has been considered by the Division Bench of this Tribunal in the case of Pitambar Coated Paper Ltd. Vs. Commissioner of Central Excise, Jaipur-I reported in 2003 (152) E.L.T. 392(Tri.-Del.). It is pertinent to refer to the relevant findings of the Tribunal which is reproduced here in Below: 6. No doubt, the appellants availed the benefit of exemption Notification No. 6/2000-CE dated 01.03.2000 during the period 01.03.2000 to 31-8-2000 and cleared the goods on the same price on which they were clearing earlier to that period. They did not reduce the sale price of the goods. But, in our view, no presumption that they still collected duty from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount representing as excise duty from the buyers. Whenever, they had collected earlier to the availment of the exemption from payment of duty under the notification in question, they had separately shown the rate of duty recovered from the buyers of the goods, against the column BED. This fact is quite evident, as discussed above, from the copies of the invoices placed on the record by the appellants. Therefore, the provisions of Section 11D of the Act could not be Invoked against the appellants. 8. In the light of the discussions made above, the impugned order of the Commissioner cannot be sustained and the same is set aside. The appeal of the appellants stands accepted with consequential relief. 10. Further, in the case of Shree Shyam Pulp and Board Mills Ltd cited (Supra), the Division Bench of the Tribunal by relying upon the Pitambar Coated Paper Ltd. cited (Supra) has allowed the appeal of the appellant and held that recovery under Section 11D is not sustainable. Further, in the case of Everest Industries Ltd. cited (Supra), examined the provision of Section 11D of the Central Excise was examined prior to 2008 because the period involved in the present case is from 24.01.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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