TMI Blog2022 (5) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... said provisions (Sec 28B or Sec 11D) whether credit is availed by the Appellant or not. Since the duty has been collected from customers, the appellant has no other option but to pay the same to govt. exchequer. Accordingly, I hold that the adjudicating authority has correctly held that the Appellant is liable to pay the duty amount of Rs.10,44,436/- along with interest collected from their customers under the provisions of Section 28B of Customs Act, 1962 read with Section 11D of Central Excise Act, 1944. Appellant while submitting today has produced on record documents in the form of commercial invoices through which the appellant has purchased the machines which got imported after purchase. The bill of entry filed for those machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ankur Upadhyay, Advocate for the Appellant Ms. Tamanna Alam, Authorised Representative for the Respondent ORDER The appellant herein are engaged in manufacture of Sugar Boiled Confectionery. The department during the scrutiny of records of the appellant for the period covering 2012-13, 2013-14 and 2014-15 observed that some machineries were imported by the appellant and were removed as such on the strength of invoices to M/s. Mayank Food Products, Indore and to M/s. Mahendra Industries Unit-II, Indore. The officers of Central Excise Audit, Indore also observed that while raising those invoices, the appellants have collected CVD and also the additional duty levied but the said amount collected has not been deposited by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty has already been paid by the appellant at the time of filling the bill of entries for those machines. It is submitted that in terms of Rule 3 of Cenvat Credit Rules, 2004 appellants should have taken the Cenval credit of the amount of CVD and additional duty paid but the said Cenvat credit was never availed due to which while transferring the imported machines to further customers that the said amount of CVD and additional duty has been charged from them. Again paying back the same in terms of Section 28 B of the Customs Act, 1962 shall amount to case of double taxation on single import. Otherwise also, while not availing the Cenvat Credit on impugned CVD and additional duty but charging the same amount from the customers is a revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim the Cenvat Credit of the duty, if any, paid by him while getting clearance of the machines imported by him. There is no denial to the submission of the appellant that no Cenvat credit has been availed by the appellant. These observations are sufficient for me to hold that Commissioner (Appeals) has committed an error while holding I find that there is no reference to availment of credit in the said provisions (Sec 28B or Sec 11D) whether credit is availed by the Appellant or not. Since the duty has been collected from customers, the appellant has no other option but to pay the same to govt. exchequer. Accordingly, I hold that the adjudicating authority has correctly held that the Appellant is liable to pay the duty amount of Rs.10,44, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted while charging the said amount of CVD and additional duties, the credit whereof was not taken by the appellant, from its customers. 5.4 Though Commissioner (Appeals) could not have the opportunity to look into the documents as have been mentioned above proving the payment of CVD and additional duty by the appellant to the Government Exchequer still the findings of Commissioner (Appeals) in Para 9 of the order under challenge itself are found erroneous as the demand has been confirmed for the reason that there is no mention of amount of excise duty. The finding/the reason quoted is apparently wrong as appellant has been an importer and not the manufacturer. Question of any amount of excise duty does not at all arise to ever be the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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