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TMI Blog2024 (8) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11D can be invoked to recover such amount. In the instant case, the appellant has made predeposit of Rs.1 crore and later issued supplementary invoices passing on the burden of the duty paid by them as predeposit to M/s.Renold. The deposit made by them is still with the Government. The appeal in which they had made the predeposit has attained finality wherein the demand, interest and penalties have been entirely set aside on merits as well as on issue of limitation. Consequently, the appellant would be eligible for refund of predeposit of Rs. 1 crore made by them. The appellant has not applied for refund and does not intend to claim refund of the predeposit made. The intention of predeposit is to protect the revenue involved in the appeal and making the recovery of the demand easy and hassle free in case the demand is confirmed in favour of Revenue. The amount is deposited with the Central Government towards the demand impugned in the appeal. In case the demand is confirmed the deposit attains the character of duty / tax and is recovered / adjusted. There is no requirement of further recovery proceedings in regard to predeposit. On the contrary, when the demand is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to have been removed by appellant to M/s.Renold. Therefore, a show cause notice dt. 17.09.2009 was issued to the appellant in this regard. After adjudication, the original authority vide Order--in--Original No.11/2010 dt. 06.08.2010 confirmed the demand of Rs.3,47,72,428/-- along with interest and also imposed penalty. The issue on limitation was also held against the appellant. 2. Against such order, the appellant preferred an appeal (E/687/2010) before the Tribunal. The appellant was directed to make a predposit of Rs.1 crore within 8 weeks as per Stay Order No.708/2011 dated 8.9.2011. The appellant made total predeposit of Rs.1 crore by 4 installments of Rs.25 lakhs each. 3. Investigation conducted by the officers of Preventive Unit revealed that after the stay order, the appellant issued 4 supplementary invoices to M/s.Renold on different dates. It was noticed that the appellant has raised the above supplementary invoices for clearances of 1 kg each of Round and Flattened Steel Wire Alloy with unit rate of Re.1/-- per kg and the total product value of goods cleared has been mentioned as Re.1/--. In the said supplementary invoices the appellant further mentioned as part paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Rule 9 (1) (b) of CCR 2004, the supplementary invoice issued by a manufacturer for payment of additional amount of duty is not a valid document for taking cenvat credit where the additional amount of duty became recoverable from the manufacturer on account of non--payment / non--levy / short levy by reason of fraud, collusion, suppression of facts etc. 8. Rule 26 (2) (ii) of Central Excise Rules, 2002 provides that any person, who issues any document on the basis of which the user of the document is likely to take or has taken any ineligible benefit like claiming of cenvat credit, is liable to penalty as per the said rule. 9. The present show cause notice dt. 4.3.2014 was issued to the appellant raising the above allegations and proposing to recover the amount of Rs.1 crore by invoking Section 11D of Central Excise Act, 1944 along with interest in terms of Section 11DD of the Act and also for imposing penalty under Rule 26 (2) of Central Excise Rules, 2002. Aggrieved by such order, the appellant is now before the Tribunal. 10. The Ld. Counsel Ms. R. Charulatha appeared and argued for the appellant. It is submitted that the allegation in the SCN is that the appellant collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on natural persons. The appellant being a corporate entity penalty imposed under Rule 26 (2) cannot sustain. To support this argument, the Ld. Counsel relied upon the decision in the case of Woodmen Industries Vs CCE Patna -- 2004 (164) ELT 339 (Tri.--Kolkata) as affirmed by the Supreme Court in the case of Commissioner Vs Woodmen Industries -- 2004 (170) ELT A307 (SC). Further, department has not initiated any proceedings against M/s.Renold for taking ineligible credit. 10.3 In regard to the allegation that the supplementary invoices issued by the appellant are in violation of Rule 9 (1) of (b) of CER 2002, it is submitted that the Tribunal has set aside the demand on merits as well as on the ground of limitation holding that there is no suppression of facts on the part of the appellant. Therefore, the supplementary invoices issued are valid documents to avail credit. Thus, when credit availed by M/s.Renold is eligible the allegation that the appellant has enabled M/s.Renold to avail ineligible credit is unsustainable. Ld. Counsel prayed that the appeal may be allowed. 11. The Ld. A.R Shri Anoop Singh appeared and argued for the Department. It is submitted that the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay duty under this Act or the rules made thereunder, and has collected any 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, shall forthwith pay the amount so collected to the credit of the Central Government. (1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (1A), as the case may be, and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is with the Central Government, the department has sought to recover the very same amount alleging that the appellant has made dual use of the amount. There is no such dual use. The intention of predeposit is to protect the revenue involved in the appeal and making the recovery of the demand easy and hassle free in case the demand is confirmed in favour of Revenue. The amount is deposited with the Central Government towards the demand impugned in the appeal. In case the demand is confirmed the deposit attains the character of duty / tax and is recovered / adjusted. There is no requirement of further recovery proceedings in regard to predeposit. On the contrary, when the demand is set aside, an assessee can obtain refund of the predeposit. The assessee need not take the course of Section 11B of Central Excise Act, 1944, to obtain refund of predeposit. A mere request letter would be sufficient. The restrictions of time bar and unjust enrichment are not applicable for refund of predeposit making it easy and hassle free. This is because the predeposit is just an amount deposited. It would thus appear that predeposit is of a flexible nature. 16. At the time of hearing, the main argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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