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TMI Blog2017 (8) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... The brief facts of the case are that the appellant is engaged in manufacture of Pharmaceutical Products and availing the facility of Modvat Credit of duty paid on the inputs and capital goods. On intelligence, it was found that the appellant was manufacturing and clearing Allopurinol Tablets, Mica & Reocin Injections under exemption availing the benefit of Notification No. 06/2003-CE dt. 01.03.2003. The appellant did not reverse the Cenvat Credit at the rate of 8% of the total price (excluding sales tax and other taxes) from their Cenvat Credit account or current account at the time of clearance of exempted goods as required under Rule 6 (3)(b) of the Cenvat Credit Rules, 2002. Therefore, it was alleged that the appellant has cleared the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. The appellant has reversed the Cenvat Credit attributable to the exempted goods. The matter was adjudicated and the proposals made in the show cause notices were confirmed along within interest but the penalty proposed in the show cause notice was reduced. Against the order of reduction of penalty, the Revenue filed the appeal before the Ld. Commissioner (Appeals) and against the order of confirmation of the demand of duty, the appellant also filed the appeal before the Ld. Commissioner (Appeals). The Ld. Commissioner (Appeals) dismissed the appeal filed by the appellant. Aggrieved from the said order, the appellant is in appeal. The Ld. Commissioner (Appeals) separately dealt with the appeal filed by the Revenue and enhanced th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the light of the decision of Unison Metals Ltd. Vs. CCE - 2006 (204) ELT 323 followed by the CBEC Circular No.870/08/2008-CX wherein it has been held that so long of the amount recovered as duty has been deposited with the revenue, provision of Section 11D shall not apply, therefore, the impugned demands are to be set aside. Consequentially, no penalty is imposable on the appellant as the appellant was under bona-fide belief that during the said period that the Cenvat Credit is not required to be reversed in view of the decisions of the Hon'ble Apex Court in the case of Orissa Extrusions Vs. CCE - 2000 (115) ELT 30 (SC) which was later reversed by the Hon'ble Apex Court in the case of Amrit Paper Vs. CCE - 2006 (200) ELT 365 (SC), therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has recovered by the appellant from the buyers towards the duty has already been paid to the Department. This fact is not in dispute, therefore, under Section 11D of the Act, no demand is sustainable against the appellant. We further find that the Ld. AR argued that the duty has been recovered by the appellant from the buyers which was paid but they are required to reverse the 8% of the value of the exempted goods. If the said amount has recovered as duty, therefore, the appellant is required to reverse the 8% of the value of the exempted goods. We have gone through the show cause notices and there is no such demand in the show cause notice against the appellant for reversal of 8% of the value of exempted goods, therefore, the argument adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as under:- 2. It is seen that the Larger Bench of the Tribunal in the case of Unison Metals Ltd. Versus Commissioner of Central Excise, Ahmedabad-I [2006(2004) E.L.T. 323 (Tri.-LB)] has held that section 11D provides that any amount which has been collected as excise duty and not paid to the credit of the Central Government shall be liable to be recovered. The scheme of the Law is that manufacturers shall not collect amounts falsely representing them as Central Excise duty and retain them, thus, unjustly benefiting themselves. However, in case of payments made under erstwhile rule 57CC(1), section 11D of the Act is not applicable since the amount of 8% or "10% has already been paid to the revenue and no amount is retained by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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