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TMI Blog2024 (11) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... nt collected in the name of excise duty and paid to the government, the same cannot be demanded twice as provided under Section 11D of the Central Excise Act. This issue has been considered in the case of Shivam Metals [ 2008 (8) TMI 654 - CESTAT, NEW DELHI] wherein, this Tribunal has held that ' In the present case, the Appellant paid duty on the exempted goods and collected the amount from their customers as evident from the invoice. It is noted that the Appellant had not retained any amount and paid to the Government and, therefore, Section 11D of the Act cannot be invoked. So, the impugned order is not sustainable, and it is set aside.' From the above judgment, it is settled that any amount collected but paid to the Central Government, the demand of such amount cannot be raised invoking Section 11D of the Central Excise Act, 1944. Following the above judgment and the discussion made, it is opined that the demand under Section 11D in the present case is not sustainable. The impugned orders are set aside - The appeals are allowed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Shri Anand Nainawati , Advocate appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay only an amount which is equal to Cenvat Credit availed on the inputs removed as such the excess amount collected by the appellant is recoverable as per the statutory provision of Section 11D of the Central Excise Act, 1944. Therefore, the demand was rightly confirmed and upheld by the lower authority. 4. We have carefully considered the submissions made by both the sides and perused the records. Having considered the fact of the present case, we find that the appellant have paid the excise duty on the removal of input as such on the transaction value, the said excise duty was found to be in excess to the actual Cenvat Credit involved in such removal of input as such. Therefore, the revenue has demanded the excess amount under Section 11D of Central Excise Act, 1944 which reads as under:- 11D. Duties of excise collected from the buyer to be deposited with the Central Government.-- (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, 2[every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clear that if an assessee collects an amount in the name of excise duty and retained the same with him. The same needs to be credited into the Central Government. In the present case, there is no dispute that even though, the appellant have charged excise duty over and above the Cenvat Credit involved in inputs removed as such but the total amount collected from the customer has been paid by debiting the Cenvat account. Therefore, once any amount collected in the name of excise duty and paid to the government, the same cannot be demanded twice as provided under Section 11D of the Central Excise Act. A. This issue has been considered in the case of Shivam Metals (supra) wherein, this Tribunal has passed the following order:- 4. After hearing both the sides and on perusal of the records, I find that Stainless Steel Scrap is exempted goods. The Appellant paid duty 16% Adv. duty at the time of clearance of the goods and also availed Cenvat credit. It is seen that the Appellant did not retain the amount collected from the customers. The Tribunal in the case of Sterlite Industries (India) Ltd. v. CCE, Vapi - 2008 (225) E.L.T. 397 (Tribunal-Ahmd.) held that duty paid from Cenvat Accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above decision of the Tribunal has been upheld by the Hon ble High Court of Rajasthan reported at Union of India vs. Shivam Metals 2015 (326) E.L.T. 558 (Raj.) wherein, the Hon ble High Court has observed as under:- 7. We have considered the submissions of learned counsel for the parties and examined the impugned order passed by Tribunal as well as other orders passed by the assessing officer and appellate authority. 8. The dispute in the present case is only in respect of recovery of amount of duty of Rs. 28,219/- and penalty of Rs. 5,000/-. 9. The sole question for determination in the present case is as to whether the amount of Central Excise recovered by assessee, where article was NIL rate of duty deposited by way of debiting the same from CENVAT credit account is correct or not? 10. There is no dispute in the present case between the parties that amount in question has already been deposited with the Department. The objection of department is based on Section 11D of the Act. The said provision has been considered in detail by the Larger Bench of the Tribunal in Unison Metals Ltd. v. Commissioner of Central Excise, Ahmedabad-I (supra). 11. In this connection, it is relevant to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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