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2015 (10) TMI 970 - HC - Central ExciseDemand u/s 11D - appellant collected duty from the seller to compensate the loss of CENVAT credit not taken by them on their raw materials - held that:- this is not a case where the appellant had actually collected duty of excise so as to warrant the invocation of section 11D(1) of the Act. According to the learned counsel, the appellant did not collect any amount of excise duty, but, what the original authority himself indicated in his notice was the credit of modvat . Therefore, relying upon the decision of the Bombay High Court in VIRAJ IMPO & EXPO LTD. v. COMMISSIONER OF CENTRAL EXCISE, THANE-II (2005 (9) TMI 206 - CESTAT, MUMBAI), the learned counsel contended that the modvat credit cannot be treated as equivalent to the collection of excise duty - Again towards the end of the same paragraph, the original authority recorded a finding that once the appellant had collected duty on exempted goods, the amount collected by them representing excise duty is required to be deposited in the Government Account as per section 11D - question as to whether the appellant actually collected duty of excise from the sellers, warranting invocation of section 11D or where the appellant merely claimed modvat credit which was reversed after the issue of credit notes becomes a question of fact. Even the original authority which passed the order in favour of the appellant, has recorded a finding into which we shall not go in an appeal. - Decided against assessee.
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