TMI Blog2002 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e fabrics. 2. They were issued a notice under Section 11D, alleging - "......have collected Rs. 10/- per kg. as AED are reflected in their clearance invoices from their customers without debiting the same in the 'Central Excise Statutory Accounts' till the end of April, 1999 they have collected an amount of Rs. 27,19,732/- in the name of AED representing duties of excise as detailed.........." for recovery of the said amount and proposing penalties. 3. The learned Commissioner, after hearing, ordered - (i) demand of an amount of Rs. 27,19,732/- being the AED collected, but not paid during the period 2-6-98 to 5-5-99 under Section 11D read with proviso to Section 11A(1) of Central Excise Act, 1944 and ordered to pay the same t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Advocate for the appellants to indicate "(a) The amount collected from the customer is represented as Additional Excise Duty @ Rs. 10 per kg; (b) The customer is told that the DNTCF is manufactured from Unprocessed Tyre Cord Fabrics; (c) There is a reference to Notification No. 11/98-C.E, in terms of which the appellants are exempt from payment of Additional Excise Duty, if the Unprocessed Tyre Cord Fabrics is duty paid and therefore, the appellants are not paying any Additional Duty to the Government; (d) Since under Notification No. 11/98, the appellants are not required to pay any Excise Duty any Additional Excise Duty, the AED indicated in the invoice with reference to the Unprocessed Tyre Cord Fabrics has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 11A. We cannot, therefore, uphold the Order under Section 11D read with Section 11A to deposit the amounts as made by the Commissioner. As we find that relevant portion of Section 11(D), as introduced, reads as under - "....……every person who has collected any amount from the buyer of any goods in any manner as representing duty of excise,......" This has been substituted, retrospectively, to read as - "…….every person who is liable to pay duty under the Act or the Rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the Rules made thereunder from the buyer of such goods in any manner as representing duty of excise,......." A c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of substituted Section 11D. (d) Examining the provisions of Section 11D(4), we find that these provisions of adjustment of the amounts on finalisation of duty payable on the 'Dipped Fabrics' cannot order the appropriation of AED at the rate of Rs. 10/- per kg., against AED on the 'Dipped Fabrics', since AED on 'Dipped Fabrics' is 'NIL' vide Notification 11/98-C.E. applicable in this case. Once provisions of Section 11D(4) cannot be satisfied, the provisions of Section 11D(5) ordering a credit to the fund cannot be made. These provisions can work only if the expression 'duty' appearing in Section 11D(1) is considered as duty on final end product 'Dipped fabric'. Provisions of Sections 11D(1), 11D(4) and 11D(5) are to be read ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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