TMI Blog2013 (12) TMI 508X X X X Extracts X X X X X X X X Extracts X X X X ..... not tenable for the reason that only in the case of a sale transaction there will be a buyer of goods, and the case of the department itself is that no sale was involved in the transaction between the grey fabric supplier (merchant manufacturer) and the processor. The provisions of Section 11D are inapplicable to units operating under Section 3A of the Central Excise Act, 1944, who are required to pay duty based on the capacity determined by the Commissioner of Central Excise, and not for every clearance effected - the provisions of Section 11D are not applicable to units operating under the compounded levy scheme, as they pay duty on the basis of production capacity/number of chambers of a stenter, and duty liability has nothing to do w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and has collected any amount in excess to the duty assessed or determined or paid on any excisable goods under the Act or Rules form the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of Central Government. 3. The adjudicating authority confirmed the demand and imposed penalty. The respondents filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals) in the impugned order held that the excess amount collected by the respondents is not excise duty but the same is additional charges in respect of transportation, octroi, loading and unloading, cutting and packing etc, and set aside the adjudicating order. 4. The contention of the Revenue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in absence of element of sale, the provisions of Section 11D are not applicable. The contention is that the ratio of the above decision is applicable on the facts of the present case. 6. We find that in the present case the demand is made in view of the provisions of Section 11D of the Central Excise Act. For ready reference, the provisions of the Section 11D is reproduced below: "11D. Duties of excise collected from the buyer to be deposited with the Central Government.- (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the rules made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, has substance, in the light of the apex court's decision in paragraph 97 of the judgment in Mafatlal Industries Ltd. vs. UOI 1997 (89) ELT 247 (SC). The submission of the learned SDR that the expression "buyer" occurring in Section 11D which reads as under:- "Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made thereunder, every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troduction of such scheme, they continued to collect processing charges through commercial bills but started raising debit notes for handling and service charges. For this reason also, we agree with the appellants that the provisions of Section 11D are not attracted in the facts of this case. 5. Further, the provisions of Section 11D are inapplicable to units operating under Section 3A of the Central Excise Act, 1944, who are required to pay duty based on the capacity determined by the Commissioner of Central Excise, and not for every clearance effected, in the light of the Tribunal's order in Virat Ispat Ltd. vs. CCE, Mumbai 2003 (89) ECC 218, which has been followed in Saroj Textiles Ltd. vs. CCE, Kanpur 2004 (172) ELT 141, holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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