TMI Blog2015 (2) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty assessed or determined and paid on any excisable goods under this act or rules made there under, from the buyer of such goods in any manner as representing excise duty, shall forthwith pay the amount so collected to the Central Government. Section 11D has to be read with section 12A and 12B. While section 12A provides that notwithstanding anything contained in this act or any other law for the time being in force, every person who is liable to pay excise duty on any goods shall, at the time of clearances prominently indicate in all the documents relating to assessment, sale invoice and other like documents, the amount of such duty which will form part of the price at which the goods are to be sold. Section 12B provides that ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a, Advocate For the Respondent : Shri Pramod Kumar, AR ORDER Per Rakesh Kumar (for the Bench): The appellant are manufacturers of pre-stressed concrete pipes chargeable to central excise duty. During period from November, 2002 to 31.07.2003, the appellant in terms of their contract with Rajasthan Public Health Engineering Department supplied PSC pipes. In terms of contract the PSC pipes were supplied at a composite price which was inclusive of all the taxes and in terms of the contract terms, the appellant were not to be reimbursed any taxes by the Rajasthan Public health engineering department. The appellant, in respect of these supplies of PSC pipes claimed the duty exemption under notification no. 6/02-CE (Serial No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how Cause Notice was adjudicated by the Commissioner vide order-in-Original dated 20.09.2013. In this order, while the Commissioner held that the benefit of notification no. 06/02-CE (Serial No. 196-A) is admissible to the appellant and accordingly he dropped the duty demand of ₹ 1,73,74,520/-, he directed the appellant under section 11D(3) to pay an amount of ₹ 1,72,80,890/-, which according to the Commissioner had been recovered by the appellant from their customer PHED as excise duty in excess of the duty mentioned in the invoices/returns and which has not been paid by them to the Central Government. Against this order of the Commissioner this appeal has been filed by the appellant, along with stay application. 2. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise duty, it cannot be presumed that the appellant have collected an amount representing central excise duty, that impugned order, therefore, is not correct, that the appellant have a strong prima facie case in their favour and hence, the requirement of pre-deposit of the amount demanded under section 11D and interest thereof may be waived for hearing of the appeal and recovery thereof be stayed. 4. Shri Pramod Kumar, Ld. Jt. CDR opposed stay application by reiterating the findings of the Commissioner in the impugned order and in this regard he drew attention to the Commissioner s findings in para 22.12 of the impugned order wherein relying upon the contents of para B, C and D of the grounds of the writ petition filed by the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red an amount of ₹ 1,72,80,890/- towards excise duty from their customers PHED, which is in excess of the amount of duty mentioned in the Invoices/ Returns the same is recoverable from them under section 11D as this amount has not been paid by them to the Central Government. This conclusion is based on the assumption that the contract price which is inclusive of all the taxes, would also have included Central Excise duty in respect of which the appellant had claimed exemption and which has been allowed. 6. Under section 11D(1) every person who is liable to pay excise duty under this act or rules made there under and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayable is shown as nil. Therefore, merely from the contract terms that providing that the price at which the pipes are to be supplied shall be inclusive of all the taxes, it cannot be presumed that the price also included excise duty. We find that some view has been taken by the Tribunal in the case of Simco Ltd. Vs. CCE Jaipur (Supra). In view of this, we are of the prima facie view that the impugned order demanding an amount of ₹ 1,72,80,890/- from the appellant under Rule 11D is not correct. The requirement of pre-deposit of this amount along with interest for compliance with the provisions of section 35F would result in undue headship to the appellant. The requirement of pre-deposit of the demand under confirmed section 11D al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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