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TMI Blog2006 (10) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rule 57CC(1) and collected from the customers is required to be deposited with the Govt. in terms of the provisions of Section 11D of the Central Excise Act." 2. The facts leading to raising of the reference are that the assessees are engaged in the manufacture of both cold rolled (dutiable) and hot rolled (non-dutiable) steel pattas and patties. Assessees producing non-dutiable final products are not entitled to Modvat credit in respect of duty paid on inputs. However, the assessees producing both dutiable and non-dutiable final products can avail themselves of Modvat credit on all inputs, (including the inputs going into the production of non-dutiable goods) subject to the condition that they shall "pay an amount equal to 8% of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the assessee is that the question of payment under Section 11D cannot arise in a case where the recovery from the buyer of the goods is in lieu of the amount paid to the revenue at the time of removal of the goods from the factory. The submission is that any deposit in such a case would amount to payment of duty twice over on the same goods, which is not contemplated in law. In support of this contention the appellants have cited the judgment of the Hon'ble Supreme Court in the case of M/s. Mafatlal Industries [1997 (89) E.L.T. 247 (S.C.)]. 6. There is also a submission that it is well settled that the amount paid in terms of Rule 57CC is not duty of excise and therefore, Section 11D cannot have any application inasmuch as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % of the value of the goods in terms of Rule 57CC at the time of removal of the goods from the factory. The amounts so paid are the amounts recovered by them from their buyers. Thus, in the present cases, no amounts collected from the buyers remain unpaid to the revenue, irrespective of whether those amounts were represented in the sales documents as duty or not. In fact, the invoices referred to the payment in different terms such as "8% reversal of assessable value", "8% value", "8% duty etc." As the amounts recovered from the buyers are not retained by the assessees, the question of deposit cannot arise, whether under Section 11D or any other provision. A reading of Section 11D makes it clear that what is required is that amounts collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above view taken by the Tribunal is in conformity with the judgment of the apex Court in the case of Mafatlal Industries, that repeat payment of excise duty is not contemplated. We read para 97 of that judgment [Mafatlal Industries Ltd. - 1997 (89) E.L.T. 247 (S.C.)]: "Meaning and Purport of Section 11D 97. It was contended by the learned counsel for the appellants-petitioners that Section 11D provides for double taxation. It was contended that sub-section (1) of Section 11D makes the manufacture liable to pay duty which he collects from the buyer as part of the price of goods even where the manufacturer has already paid the duty at the time of removal. We do not think that there is any foundation for the said understanding or appre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o paid. In doing so, an assessee is recouping the tax already paid. The arrangement is not that the assessee first collected the tax from the buyer of the goods and then remits the amount to the government. Section 11D has to be read keeping this scheme in view. Therefore, the provisions for "every person who is liable to pay duty........ and has collected any amount from the buyer of any goods in any manner representing as duty of excise, shall forthwith pay the amount so collected to the credit to the Central Government" has application only when equivalent duty had not been deposited at the time of removal of the goods. The scheme of the law is that manufacturers shall not collect amounts falsely representing them as central excise duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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