TMI Blog2000 (2) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excises Salt Act, 1944. The petitioner was also called upon to pay the amount of Rs. 24,49,262.00 as basic excise duty being the differential amount of Central Excise Duty. The petitioner was also called upon to show cause as to why penalty under Rule 173Q(1) should not be imposed. From the text of the notices, it appears that the allegation was that the petitioner contravened the provisions of rules 9(1), 173C, 173F, 173G and 226 of the Central Excise Rules, 1944 (herein after referred to as the Rules), the details of which are mentioned in paragraph 23 of the show cause notice (at page 49, running page 294) as under :- It appears that M/s. Parle International Ltd., Ahmedabad23. have contravened the provisions of Rules 9(1), 173C, 173F, 173G and 226 of the "Said Rules" inasmuch as :- (i) they have deliberately suppressed the correct assessable value and have removed the NABB units from their factories without payment of proper Central Excise Duty as required under rule 9(1) of the 'Said Rules'; (ii) they have deliberately shown lesser Assessable value in the Price List filed with the Department from time to time and have failed to declare th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-6-1994 though under protest, it was paid to the Collector instead of Assistant Collector, and it did not bear any date of acknowledgment. It was further indicated that in view of section 11B(1) of the Central Excise Rules, 1944, the duty amount claimed is time-barred. It was further pointed out that under the provisions of Sec. 11B of the Act, the incidence of duty of excise having been passed over to other persons, the refund is to be credited to the Consumer Welfare Fund. It was pointed out that no material has been placed to indicate that the incidence of duty has not been passed on to any other person. The petitioner was called upon to file a reply to the show cause notice within a period of 15 days. 6.To the said three show cause notices, replies were given indicating that the counsel is out of India and services of the counsel being not available, reply will be filed shortly. The petitioner thereafter filed this petition, inter alia, contending that the respondent No. 3 had no authority under the law to issue such notices , and instead of refunding the amount deposited by the petitioner, the Revenue has wrongly withheld the amount, dishonestly and without any bona fides. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner with Mr. Vakil submitted that the Respondent No. 3 has exceeded his powers and has issued show cause notices which are without jurisdiction. The question is whether the amount paid was "deposit" or "duty" and whether the said amount is required to be refunded or not. With a view to canvass the submission that the amount paid was "deposit", Mr. Nanavati submitted that under the Central Excise Act, there is a procedure for levy and collection of duty which is defined under Chapter II. He drew our attention to sub-section (1) of section 3 of the said Act, which reads as under :- 3(1). There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985; 10.Mr. Nanavati submitted that schedule to the Central Excise Tariff Act, 1985 prescribed the rates and it is not the case of the respondents that the assessee has not paid the excise at the rate set forth in the schedule of Central Excise Act. The duty was levied and collected in the manner as prescribed. The subject matter and the dispute as po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of considering whether clause (d) of proviso to sub-clause (2) of Section 11B of the Act would apply or not. 12.It is required to be noted that under the Central Excise Act, there is only one duly and that has been imposed on the manufacturer. The duty on the excisable goods has to be paid before the clearance of the goods. in the manner and mode laid down under the Act and the Rules. The Act does not impose any other duty. The excise Department is not concerned with what happens to the goods after the goods are cleared. Reading Sec. 3 of the Act, it becomes clear that the amount paid at that stage is the amount of duty and that amount of duty can be presumed to have been passed on to others. It is not the case of the respondents that though the goods manufactured by the petitioner was excisable goods, petitioner had not prominently indicated the same in the invoice of sales and the amount of such duty did not form part of the price at which the goods were sold. Therefore, whatever excise duty was charged at the relevant time, the incidence of which had been passed on to other persons, is not being claimed. It is also not the case of the respondents that the duty was not pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) the assessee shall have no right to deposit the duty under protest; Provided that an assessee shall be allowed to deposit the duty under protest during the period available to him for filing an appeal or revision, as the case may be, and during the pendency of such appeal or revision, as the case may be. (8) If any of the provisions of this rule has not been observed, it shall be deemed that the assessee has paid the duty without protest. NOTE : A letter of protest or a representation under this rule shall not constitute a claim for refund." 14.Reading the aforesaid provision, it becomes clear that at the time of payment of duty as mentioned in the aforesaid Rule, if the assessee has any objection to the rates etc. then he has to make payment under protest to the appropriate officer. It is for that duty/refund of duty, the procedure as laid down under rule 233B is required to be followed. This rules will be applicable at the time of clearance of the goods and not at any time thereafter. At the time of payment of duty when the goods are being cleared the question of payment of duty with protest or without protest may arise. This provision cannot be applied in a ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order would have been adverse to him, then the assessee would have to file an appeal and during that appeal either the assessee might have deposited the amount or the Tribunal might have protected the assessee. If the assessee had deposited the amount and the appeal was allowed, then the assessee would be entitled to get the same. 18.The amount of duty at the time of clearance of the goods is to be understood as duty paid at the time of clearance of the goods on the basis of the invoice. It is not the case that more duty was charged from the consumer and less was paid to the Revenue. Under Section 12A of the Act, every person who is liable to pay duty of excise on any goods at time of clearance of the goods has to indicate the amount of duty, which forms part of the price at which such goods were to be sold in all the documents not only relating to the assessment but sales and invoices also. Thus, whatever duty amount was collected has been credited in the account of the Revenue. There is not whisper that breach of the aforesaid provision has been committed by the petition. 19.Learned Counsel Mr. Nanavati submitted that in the instant case, if the amount towards duty as cla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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