TMI Blog2015 (6) TMI 622X X X X Extracts X X X X X X X X Extracts X X X X ..... crossing the SSI exemption limit, they were supplying the cylinders at the agreed price at ₹ 300/-. They had not collected in excess of the price fixed at NDP by IOCL, which is inclusive of excise duty. It is seen from the order of the Adjudicating Authority that he has not recorded any finding to sustain the demand. The Commissioner (Appeals), after verifying the facts and records and after perusing the statements given before the Central Excise Officers, held that the first respondent/assessee had not collected in excess of over and above what was paid. It is to be noted that the Department had not disputed the eligibility of the SSI exemption availed by the first respondent/assessee and there is no proposal to deny the SSI exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged 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 Ltd. through a open tender. They have opted for SSI exemption for the financial year 2005-06 under Notification No.8/2003 and cleared the goods at 'Nil' rate of duty and on crossing the SSI exemption limit, they cleared the goods on payment of appropriate Central Excise Duty. Alleging that the first respondent had collected excise duty during the period from 01.04.2005 to 14.05.2005 from M/s.IOCL, but failed to remit the same to the Government Account while availing SSI exemption under Notification No.8/03, show cause notice was issued demanding duty under Section 11D of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 exercised their option to avail the value-based exemption under Notification No.8/2003. But due to negligence on the part of their staff, the invoices issued after 01.04.2005 and upto 14.05.2005 continued to show the excise duty component. On crossing the exemption limit and starting to pay duty during May 2005 only, they found out the mistake that occurred while preparing the invoices for the period from 01.04.2005 to 14.05.2005. From the above, the counsel argued, it is clear that there is no intention on the part of the appellant to collect excise duty from their client a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, 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 respondent/assessee had collected in excess of excise duty over and above what was paid. The relevant portion of the order of the Tribunal reads as follows: Heard both sides and perused the records. The main allegation of the department is that the first respondent realized the duty from IOCL but not deposited the same with the department. Therefore duty was demanded under Section 11D. There is no dispute on the fact that the first respondent is an SSI unit and availing the SSI exemption under Notification 8/03. Further, the first respondent entered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 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 Court. 6. It is seen from the order of the Authorities below that the first respondent/assessee were supplying cylinders through open tender to IOCL. They have fixed the price of the cylinder at ₹ 300/-. Even though they were availing SSI exemption, even after crossing the SSI exemption limit, they were supplying the cylinders at the agreed price at ₹ 300/-. They had not collected in excess of the price fixed at NDP by IOCL, which is inclusive of excise duty. It is seen from the order of the Adjudicating Authority that he h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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