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TMI Blog2017 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed the demand of the amount of Rs. 11,00,150.76 under Section 11D (3) of the Central Excise Act, 1944 and also imposed penalty. By the impugned order the Commissioner (Appeals) upheld the Adjudication order. Hence, the present appeal. 2. Heard both sides and perused the appeal records. 3. I find that the appellant debited an amount of 8% of the value of the exempted goods as required under Rule 57AD of the erstwhile Central Excise Rules, 1944. According to the Revenue, the appellant collected the said amount as duty of excise from their customers, which is liable to be recovered under Section 11D of the Central Excise Act, 1944. I find that on an identical issue the Tribunal in the case of M/s. Texmaco Ltd. vs. Commr. Of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11D makes it clear that what is required is that amounts collected as duty should not be retained by the manufacturers and should be deposited with the revenue. This was the view that Division Bench took in the case of Nu-Wave shoes. We may read the relevant part of that order: "Admittedly, Rule 57CC(1) is applicable in the present case. It is not the case of the Department that the assessees have been charging an amount over and above 8 of the price of the exempted variety of footwear from their customers and in fact, the show cause notice proceeds on the basis that only the amount reversed by debit in the credit account from 1-9-1996 to April, 1997 has been charged from the customers. For the period 23-7-1996 to 31-8-1996, the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot think that there is any foundation for the said understanding or apprehension. There are no words in the section which provide for payment of duty twice over. All that the section says is this: the amount collected by a person/manufacturer from the buyer of goods as representing duty of excise shall be paid over to the State; even if the tax collected by the manufacturer from his purchaser is more than the duty due according to law, the whole amount collected as duty has to be paid over to the State; if on the assessment being made it is found that the duty collected and paid over by the manufacturer is more than the duty due according to law, such surplus amount shall either be credited to the Fund or be paid over to the person who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounts falsely representing them as central excise duty and retain them, thus, unjustly, benefiting themselves. In the present cases, (irrespective of whether the 8% payments were duty or not) since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, Section 11D has no application". It is also observed that the above order passed by the Larger Bench has been accepted by the Department as per CBEC Circular No.870/8/2008-CX dated 16.05.2008. 5. In view of the above settled proposition of law confirmation under Section 11D of the Central Excise Act, 1944, with respect to amounts reimbursed to the appellant, equivalent to the payments made under Rule 6(3) (b) of the CENVAT Credit Rules, is not justif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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