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TMI Blog1994 (2) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... ables and they are registered as small scale units. They are required to pay excise duty on ad valorem basis at 15% for clearance upto Rs. 75,00,000/- and at 25% for clearance from Rs, 75,00,000/- to Rs. 2,00,00,000/-. Beyond the limit of rupees two crores, they do not have the benefit of concessional duty. 4. It is not disputed by the petitioners-appellants that they did collect the excise duty from the purchasers at 25 per cent on the sales below Rs. 75 lakhs also, even though they were required to pay excise duty only at 15% upto Rs. 75 lakhs. 4.1 A show cause notice dated 14-2-1992 was issued by the first respondent, demanding the payment of Rs. 6,78,562.30 being the excess collection of excise duty from the consumers during the period 1-4-1990 to 9-6-1990, invoking Section 11D of the Central Excises and Salt Act, 1944, (hereinafter referred to as the Act,). It may be pointed out that this provision along with the other concomitant provisions was introduced with effect from 20th September, 1991 by the Amending Act No. 40 of 1991. The petitioners-appellants have collected 25% on all the amounts during the period 1-4-1990 to 9-6-1990. The excess collection representing the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in Section 11D of the Act are held to be applicable to or operative only in respect of the amount collected as representing excise duty on and from 20th September, 1991, as otherwise the deposit will attract the provisions of Section 11D of the Act. It is also contended that Section 11D of the Act cannot at all be construed as retrospective, so as to cover the period prior to 20th September, 1991. On the contrary, it is contended by the learned counsel for the respondents that there is no question of construing Section 11D of the Act as retrospective inasmuch as Sections 11A, 11B, and 11D of the Act are to be read together and the power of demanding the excise duty if it has not been levied or paid or has been short-levied or short paid or erroneously refunded would be exercisable only upto the period as stated in Section 11A, namely, within six months from the relevant date in the case of service of notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made or five years from the relevant date in the event it is found that the excise duty has not been levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned, it was already there in the statute prior to Act 40 of 1991. Section 11D of the Act reads as follows : ********* These provisions fall in the category of fiscal statutes, therefore, the rule of interpretation applicable to fiscal statutes has to be applied and in the event there is any doubt that doubt should lean in favour of the person, who is made liable to pay the duty. 8. The objects and reasons of the Amendment are as follows : "(1) The question of 'unjust enrichment' in case of goods subject to duty of excise or customs has been the subject-matter of discussion for quite sometime now. The concept of "unjust enrichment" in so far as it relates to the said duties, is that any refund of these duties made to any manufacturer or importer, who may have initially paid these duties but had passed on the same to the buyers, would be in the nature of a windfall gain to such manufacturer or importer. (2) The Public Accounts Committee made an inquiry into all aspects of the issue relating to refund of Central Excise duty. The Committee presented its report to the Parliament on the 11th day of March, 1991. The Committee has also recommended for the introduction of sui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment and the said amount shall be utilised in adjusting the duty payable by the manufacturer or importer on finalisation of assessment. The surplus, if any, will be dealt with in accordance with the aforesaid provisions of Section 11B of the Central Excises and Salt Act, 1944 and Section 27 of the Customs Act, 1962." Thus, it is clear that the object for introduction of the Amendment Act is to ensure that there is no unjust enrichment made by manufacturers or importer of goods subject to duty of excise or customs and in the event there is such unjust enrichment made by the manufacturer, to recover the said amount and to credit it to the Consumer Welfare Fund. At the same time, care is also taken to ensure that such an amendment is not arbitrary and does not take away the right of the manufacturer or importer in the event he is able to prove that he has not passed on that duty to the buyer, that such amount is not collected and even if it is collected, it should be refunded to him. Therefore, while ensuring that there is no unjust enrichment, the Amendment has also kept in view that no excess collection is made or hardship or any loss is caused to the manufacturer or the importer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, duty is demanded on one or other of the grounds falling under Section 11A of the Act and such a demand is within the period specified in Section 11A(1) of the Act, it cannot be said that on the date such a demand is made, whether it may relate to the period prior to 20th September, 1991, or subsequent to 20th September, 1991, as on the date the demand is made, Section 11D being in operation, the appellants can escape from its clutches. This does not mean that Section 11D is retrospective, because as long as the power to recover or demand under Section 11A of the Act is not lost, it cannot be said that any indefensible right is accrued to the manufacturer or importer to claim that he is not liable to pay any excise duty. The liability itself would be kept alive and open. Therefore, we are of the view that even without construing Section 11D of the Act as retrospective, it is permissible to hold that it is applicable to such of the claims as may be made by the department within the period as specified under Section 11A of the Act. In fact, in Mithilesh Kumari v. Prem Behari Khare [1989 (40) E.L.T. 257 (SC) = A.I.R. 1989 SC 1247], this aspect of the matter has been specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount in question, in excess of 15% as representing the excise duty and the determination of the amount is correct, we see no ground to interfere with the order. Learned Single Judge is justified in dismissing the writ petitions. We answer both the points 1 and 2 accordingly. 12. However, at this stage, a submission is made on behalf of the appellants that as the appellants have not disputed that they had collected the amount in question, as representing excise duty which is more than 15% on a sum of Rupees 75 lakhs and in the light of the interpretation placed on Section 11D of the Act, they would not press the appeal and such a submission will be made before the CEGAT on 28-2-1994 on which date the appeal is coming up before CEGAT for hearing and the appeal will be got dismissed as not pressed. Therefore, taking into consideration the fact that the appellants are a small scale industry, some instalments be granted for depositing the amount, as directed by the first respondent. Learned counsel for the department submits that as the appellants had collected this amount about two years ago and have enjoyed the benefit of the entire amount, it is not a case in which the Court sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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