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TMI Blog2002 (12) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 201/79, dated 4-6-1979 in respect of inputs, namely, Malt and Malt extract under T.I. 68, received by it from M/s. Malt & Co. (India) Pvt. Ltd., M/s. Barmalt Ltd. and M/s. A.K. Malt (P) Ltd. during the years 1977 to 1985. The said notification was issued in exercise of powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944. By the said notification, all excisable goods on which duty of excise is leviable and in the manufacture of which any goods falling under Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 (presently Central Excise Act, 1944, in short 'the Act') have been used as raw materials or components parts from so much of the duty of excise leviable thereon as is equivalen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led writ applications before the Delhi High Court and took the stand that Malt and Malt Extracts were not dutiable in terms of Notification No. 55/75. The High Court accepted this stand of the Sellers. The Sellers had paid excise duty on the inputs, and, therefore, the assessee had taken credit in respect of the amount of duty paid on the inputs. Pursuant to the High Court's order appellant had refunded the duty. Barmalt took refund of the amounts paid on 8-11-1985 and 14-11-1985, while Malt India was refunded the amount involved on 8-5-1987. On 7-9-1987 a Demand show cause notice was issued by the Assistant Collector requiring it to show cause as to why the amount of duty involved in the set-off be not recovered from it under paragraph 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particular reference is made to clause (c) of the said provision. According to him assessee had an obligation fixed statutorily to pay the difference in case of a variation of the duty paid on the inputs. There was a corresponding crystallised right available to the authorities to make necessary changes. It was pointed out that in a given situation the assessee could also benefit from the change. 6.Learned Counsel for the assessee on the other hand contended that Section 11A of the Act is clearly applicable because what was paid by the assessee was less than what was payable by it because of the set off availed and it is a case of short-levy. What was collected was less than the amount collectable, and, therefore, there is short-levy. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Barmalt case (supra) cannot be applied to others in view of what has been specifically stated by this Court in the said case. 8.From the impugned order it is noted that the Tribunal referred to an earlier judgment by it in the case of Bakeman Home Products v. Collector of Central Excise [1990 (48) E.L.T. 518] and held that Section 11A was applicable. The said provision reads as follows : "11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise duty has not been levied or paid or has been short-levied or short-paid or erroneously refunded, whether or not such non-levy or non-payment, short-levy or short payment or erroneous refund, as the case may be, was on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior approval of the Chief Commissioner of Central Excise; Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of one year or five years as the case may be." 9.A bare reading of the provisions makes it clear that it deals with recovery of duty not levied or not paid or short-levied or short-paid or erroneously refunded. The scheme under the Notification No. 201/79 operated in a different field altogether. There was no short-levy or non-levy. The levy was made as per the applicable statutes. Only a benefit was granted to the manufacturer in respect of the duty already paid on the inputs which constitute raw materials or component parts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not mean actual collection, there is a conceptual difference. The charging provision Section 3(1) specifically says : "There shall be levied and collected in such a manner as may be prescribed the duty of excise....". Both the expressions "levy" and "collected" are used. Therefore, lesser collection of duty because the adjustment of duty paid on inputs is not a case of short-levy as contended by learned Counsel for assessee. The notification in question was issued under sub-rule (1) of Rule 8. Said Rule, omitted vide Notification No. 19/88-C.E., dated 1-7-1988 dealt with power to authorize exemption from duty in special cases. If exemption is granted under Rule 8(1), goods do not cease to be excisable goods and levy of duty is not erased. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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