9911796707
TMI Blog2003 (9) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the period from 1-4-93 to 11-6-93, they have realised the duty amount from their buyers @ 30%, though they have availed the benefit of exemption Notification No. 1/93, dated 28-2-93 during the said period. 2. The Additional Commissioner, Patna while passing Order in de novo proceedings, has held in favour of the appellants by accepting their stand that no extra duty has been charged by them from the customers representing the same as duty of excise. The appellants before the Additional Commissioner has contended that they were a small-scale unit and were availing the benefit of Notification No. 1/93 during the relevant period. The duty was being paid on the basis of the price being charged from their customers, as reflected in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellants had explained that such proforma invoices were raised by them for their accounting purposes. The original adjudicating authority also examined the various clauses of the contracts and arrived at a finding that the prices offered by the appellants to the various buyers were inclusive in the price irrespective of the fact whether the appellants were paying nil rate of duty or the full rate of duty. From the above, he concluded that the mere fact that the appellants initially paid the duty either at nil rate or thereafter, at concessional rate, by itself is no evidence that the appellants had collected the same amount from its customers representing the same as duty of excises. By observing so, he dropped the demand. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Revenue. 4.1 The sole point required to be determined in the present appeal is as to whether the appellants are required to deposit the duty allegedly collected by them from the customers, but not paid to the Department as they were availing the benefit of small-scale exemption Notification No. 1/93 in terms of Section 11D of the Central Excise Act, 1944. The provisions of Section 11D of Central Excise Act, 1944 require the assessee who collected any amount from the buyer of any goods in any manner as representing duty of excise to pay the said amount so collected, to the credit of the Central Government. The undisputed fact in the present case is that the invoices raised by the appellants to their customers did not show any a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee collects from their customers by representing the same as duty of excise, is required to be deposited by him to the credit of the Central Government. Evidence has to be brought on record to show that there was collection of certain amount representing duty of excise. Admittedly, in the present case, there was no collection by the appellants from their customers representing certain amount as duty of excise merely because of the simple fact that excise duty (at whichever rate payable) was already included in the Contract Value. The Tribunal in the case of National Organic Chemical Industries Ltd. v. Commissioner of Central Excise, Bombay-III reported in 2000 (115) E.L.T. 70 (Tribunal) has observed that the provisions of Section 11D ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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