TMI Blog2023 (6) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... me of clearances of goods appellant paid duty @5%. It is seen that the Appellant did not retain the amount collected from the customers. The provisions of Section 11D of the Central Excise Act, 1944 will come into play only when an assessee collects an amount as an excise duty and does not credit it to the government treasury. The Tribunal in the case of STERLITE INDUSTRIES (INDIA) LTD. VERSUS COMMISSIONER OF C. EX., VAPI [ 2007 (9) TMI 232 - CESTAT, AHMEDABAD] held that duty paid from Cenvat Account also excise duty and recovery under Section 11D of the Act is not sustainable - In the present case, the Appellant paid duty on the disputed goods and collected the amount from their customers as evident from the invoice. It is noted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the impugned order is set aside and Appeal is allowed. - Excise Appeal No. 10931 of 2013- DB - Final Order No. A/ 11246 /2023 - Dated:- 12-6-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri, Amal Dave, Advocate appeared for the Appellant Shri Ghanshyam Soni, Additional Commissioner (AR) for the Respondent ORDER Briefly stated the facts of the case are that during the course of audit conducted by the officers of Central Excise, Ahmedabad II, it was inter alia, noticed that the Appellant had cleared certain medicaments on payment of duty whereas the said goods were exempted vide Notification No. 04/2006-CE dated. 01.03.2006. By virtue of the statutory bar provided under sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D of the Act and also an amount of Rs. 62,89,867/- being 5% of the value of exempted goods in terms of Rule 6(3) of the Cenvat Credit Rules 2004 along with interest and also for imposition of penalty on the appellant. Since the appellant had debited a sum of Rs. 12, 66,211/- and interest of Rs. 41,157, these amounts were proposed to be adjusted and appropriate against the impugned proposed demand.The show cause notice was adjudicated by the Commissioner of Central Excise who vide impugned Order-In-Original dated. 12.03.2013 confirmed the demand. Hence this appeal. 4. Shri, Amal Dave Ld. Counsel for the appellant submits that in the present case appellant availed cenvat credit of the inputs and cleared the final products on payment of 5% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an undisputed facts that the medicines cleared by the appellant fall under CTH 3004 and were eligible to 10% Central Excise Duty which was reduced to 5% unconditionally vide Notification No. 2/2011-CE. The Appellant‟s goods were covered by 2 notifications operating at the same time and the appellant chose to pay duty under Notification No. 2/2011-CE at concessional rate. The Appellant hence availed cenvat credit of the inputs and subsequently used such credit to pay duty under Notification No. 2/2011-CE at concessional rate. The Appellant hence availed cenvat credit of the inputs and subsequently used such credit for payment of duty. When there are 2 separate notifications one on which is exempting duty fully and another one prescrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit the said amount alongwith interest in terms of Section 11D of the Act. 6.2 We observed that in the present matter at the time of clearances of goods appellant paid duty @5%. It is seen that the Appellant did not retain the amount collected from the customers. The provisions of Section 11D of the Central Excise Act, 1944 will come into play only when an assessee collects an amount as an excise duty and does not credit it to the government treasury. The Tribunal in the case of SterliteIndustries (India) Ltd. v. CCE, Vapi - 2008 (225) E.L.T. 397 (Tribunal-Ahmd.) held that duty paid from Cenvat Account also excise duty and recovery under Section11D of the Act is not sustainable. The Larger Bench of the Tribunal in the case of Unison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1D. What is relevant is only whether the collection was represented as duty of excise. The representation may as well as entirely false. The qualifying of the representation through the words in any manner makes this clear. Therefore, the contentions of both sides on the question, as to whether deposits under Rule 57CC are excise duty or not, are beside the point. 6.3 In the present case, the Appellant paid duty on the disputed goods and collected the amount from their customers as evident from the invoice. It is noted that the Appellant had not retained any amount and paid to the Government and, therefore, Section11D of the Act cannot be invoked. So, the impugned order confirming demand under Section 11D is legally not correct. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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