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2012 (4) TMI 525 - AT - Central ExciseDuty demand under Section 11D read with Section 11A - Held that:- The act of such manufacture which attracts the provisions of this sub-section is recovering any amount from the buyer of the goods in any manner as representing duty of excise, which is in excess of the duty assessed and paid and in such a circumstances, the excess amount recovered from the customers as representing excise duty is required to be paid forthwith to the Government. For this purpose, it is not material whether the goods are sold from the factory gate or are cleared on payment of duty from the factory and are sold from the depots or consignment agent’s premises or any other premises. Show cause notice itself mentions that the 6326120 litres of HSD in respect of which the appellant are alleged to have recovered an amount of Rs. 66,73,108/- as representing excise duty in excess of the duty actually paid, had been received from Koyali and Manmad. The show cause notice also refers to letter dated 15-2-2000 from Manager (Finance) of the appellant to Superintendent (Preventive), Division-I, Bhopal. A perusal of this letter shows that the HSD, in question, had been received from IOC Koyali and Manmad terminal of BPCL. Since it is IOCL, Koyali and BPCL, Manmad which had cleared the pre-budget stock of HSD, in question, on payments of duty at pre-budget rates, the appellant cannot be treated as the “person liable to pay the duty” in respect of the HSD, in question, and hence, the provisions of Section 11D(1) would not be applicable to them - Decided in favour of assessee.
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