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TMI Blog2015 (6) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal in holding the breakup figures of Excise Duty shown in the invoices issued under Rule 11 of Central Excise Rules, 2002 as a genuine clerical error is correct or not? b. Whether the duty demand made under Section 11D of Central Excise Act, 1944 as made out in the Show Cause Notice is correct or not, inasmuch as duty has been charged on the value as per Section 4 of the Central Excise Act, 1944 and the goods removed on invoices as per Rule 11 of Central Excise Rules, 2002? 2. The brief facts of the case are as follows: The first respondent/assessee was engaged in the manufacture of LPG Cylinders falling under Chapter 73 of the Central Excise Tariff Act, 1985 and were supplying the same to M/s.Indian Oil Corporation L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the exemption limit. Before availing SSI exemption they have availed Cenvat Credit available to them. He further held that there was no excess amount charged and collected so as to enable the Department to invoke the provisions of Section 11D of the Central Excise Act. The relevant findings of the Commissioner (Appeals) reads as follows: "It is seen from the records that the appellant were availing SSI exemption during the year 2004-2005. During February 2005 when they had crossed the exemption limit, they started paying excise duty by availing the Cenvat Credit available to them. At that time they had programmed their computer to print invoice showing the excise duty component also. At the beginning of the year 2005-2006, they have exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty. As far as the appellant is concerned, they charged Rs. 300/- while availing the exemption and continued to charge Rs. 300/- even after crossing the exemption limit and borne the excise duty component from out of the Cenvat credit amount available to them for utilization. So they charged and collected nothing extra and hence are not liable to pay duty to warrant invoking of the provisions of Section 11D of the Central Excise Act, 1944. 3. Not satisfied with the order of the Commissioner (Appeals), the Department pursued the matter before the Tribunal, which was rejected by the single Member of the Tribunal concurring with the view of the Commissioner (Appeals) primarily on the ground that there was no material to show that the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver and above the price of the cylinder which is fixed at NDP by IOCL which is inclusive of excise duty. The first respondent had charged only Rs. 300/- while availing the exemption and continued to charge Rs. 300/- even after cross the exemption limit. The clerical error, in the consolidated invoices showing break up of excise duty appears to be genuine as the revenue has not disputed the eligibility of SSI exemption. The case law relied by the revenue in the case of Kisan Sahakari Chini Mills Ltd. (supra) is not applicable to the present case. 4. Aggrieved by the order of the Tribunal, the Department has filed the present appeal. 5. Heard learned Standing Counsel appearing for the Department and perused the materials placed before this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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