9911796707
TMI Blog2007 (9) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-11-1995 which was granted to them. They also opened PLA account on 11-12-1995 and deposited a sum of Rs. 75,000/- in the same. They also filed a Modvat declaration under Rule 57G expressing their intention to avail of the Modvat credit in respect of inputs used in the manufacture of air fresheners and also filed a classification list in respect of the air fresheners so manufactured by them. 2. As the perfumes manufactured by them were without aid of power and therefore fully exempted, the intimated the Central Excise Department vide their letter dated 15-12-1995 about the manufacture of perfumes along with manufacturing process. 3. During the course of visit by the Central Excise officers in their factory on 14-2-1997 it was found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that perfumes were manufactured by them without aid of power and an intimation to this effect was also given by them to the department vide their letter dated 15-12-1995 and the revenue has not been able to produce any evidence to show that power was used in the manufacture of perfumes. The revenue places its reliance on the statement of the purchaser who has stated that the perfume was manufactured with the aid of power by his another supplier but could not say how the appellants have manufactured it without aid of power. We however find force in the submission of the appellant that once the revenue has chosen to recover the amount under the provision of Section 11D(1) it has to be inferred that it has accepted its claim that no duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed 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 representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government." 5. In terms of above provision amount collected in excess of duty assessed or determined or paid in excess alone is required to be paid to the Central Government. Once it is held that the goods manufactured by the appellants were not liable to duty at all, the question of satisfying the requirement of Section 11D does not arise as it cannot be said that they have collected any amount in excess of the duty assessed and paid. This was the view taken by the Tribunal in the case of Shree Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise - 1995 (77) E.L.T. 511 (S.C.) which relate to proforma credit which was on a similar footing as that of modvat. We accordingly hold that the Modvat credit is admissible subject to production to duty paying documents. We accordingly remand the matter to the original authority to look into the facts whether the inputs were received and used in the manufacture of final products and into the duty paying documents which the appellants' claim are in their possession and to determine the duty liability afresh. The amount of penalty should also be determined afresh looking into the Tact that demand under the provision of Section 11D has been set aside and any other relevant factor.
7. Appeal is disposed of accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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