TMI Blog2019 (6) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... This lacuna was corrected by introduction of Section 11D (1A) in 2008. The Budget speech of the Hon ble Finance Minister for the year referred to above clarifies that prior to 2008 this Section 11D did not cover those goods where the goods were wholly exempted or were chargeable to Nil rate of duty as in the present case. The liability to Section 11D does not apply to the appellant s goods because undisputedly, the products were fully exempted from payment of duty. A plain reading of Section 11D also shows that what is required to be deposited in the Government exchequer is any amount collected as representing excise duty. In this case there is nothing on record that they have collected any amount as representing excise duty. Such passing of incidence can be direct or indirect. Section 11D cover only cases where any amount is collected as representing excise duty. In this case, none of documents presented before us show any amount was collected as representing excise duty - Appeal allowed - decided in favor of appellant. - Excise Appeal No. 40730 of 2013 - FINAL ORDER No. 40837 / 2019 - Dated:- 12-6-2019 - MS. SULEKHA BEEVI, C.S., MEMBER (JUDICIAL) AND MR. P.VENKATA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue, the Hon ble Apex Court dismissed the same as withdrawn [2002 (41) ELT A285 (SC)]. Thereafter, Section 11D was amended providing for recovery of the amount and accordingly the Commissioner adjudicated the same SCNs which were already quashed by the Hon ble High Court of Madras and confirmed the demands. Both the appellant and the department filed appeals before the Tribunal seeking to set aside the adjudication order of the Commissioner on the ground that although the Hon ble High Court of Madras has given the department the liberty to proceed as per law when the provisions for recovery of amount under Section 11D were introduced, the Commissioner should not have adjudicated the SCNs which were already quashed by the Hon ble High Court. This Tribunal vide its order dated 17.02.2011 set aside the adjudication order for this reason. Thereafter, the department issued fresh a SCN dt. 07.09.2011 covering the entire period in question citing the relevant amendment made in Section 11D and this notice was adjudicated by the impugned Order-in-Original No.3/2012 dt. 31.12.2012. In this order, Ld. Commissioner confirmed the demand of ₹ 24,62,40,909/- against which the present app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of duty but on which any amount was collected as representing Excise duty. He refers to para 30 (d) of the Budget Speech of 2008 which reads as follows : d) According to the provisions of Section 11D of the Central Excise Act, 1944 a person liable to pay duty is required to deposit with the Central Government any amount that he collects as representing duty of excise in excess of the duty assessed or determined and paid on any excisable goods. As such, recovery of amounts collected in this manner is possible only from persons who are liable to pay duty. Sub-section (1A) has now been inserted to enable the Central Government to recover such amounts from any person . Besides, it has also been provided that any person who recovers an amount representing it as duty of excise on excisable goods, which are wholly exempt or chargeable to Nil rate of duty, would also be required to deposit it with the Central Government. Consequential amendments have been carried out in section 11 DD to enable recovery of interest on such amounts if they are not deposited in time. The analogous provision contained in section 28 B of the Customs Act has also been amended in the same m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities. 6. He draws attention of the Bench to the fact that the price which is indicated by the appellant to their customers shows a consolidated amount with an expression inclusive of excise duty . The amount as well as the expression inclusive of excise duty is present in both the pricelists in which duty was paid and the UT products on which no duty was paid. This would go to show that the assessee has conveyed to the customer that the price which they were collecting from their customer is inclusive of excise duty although the specific amount of excise duty is not indicated therein. Therefore, the demand was raised reckoning this price as cum duty price. In view of the above, provisions of Section 11D apply in full force in this particular case and the Ld Commissioner has correctly confirmed the demand in the impugned order. 7. Coming to the second question of res judicata, he would submit that the original show cause notice was quashed and was treated as non est by the Hon ble High Court of Madras and consequently the order-in-original passed in the second round of litigation by the Ld. Commissioner is also non est. If the earlier SCN was non-es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime limit, he would assert that no specific time was fixed in Section 11D and therefore the demand was correctly raised. Therefore he would urge that the appeal is without merit and may be dismissed. 9. We have considered the arguments from both sides and perused the records. Section 11D of the Central Excise Act required during the relevant period of every person who is liable to pay duty under this Act or Rules and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods in any manner as representing duty of excise to forthwith pay such amount to the Central Government. Evidently, it did not cover the goods which are only wholly exempt from duty but on which manufacturer collects some amount as representing Central Excise duty. This lacuna was corrected by introduction of Section 11D (1A) in 2008. The Budget speech of the Hon ble Finance Minister for the year referred to above clarifies that prior to 2008 this Section 11D did not cover those goods where the goods were wholly exempted or were chargeable to Nil rate of duty as in the present case. The amendment in 2008 has not been given retrospective effect. For this reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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