TMI Blog2004 (6) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the Commissioner (Appeals) through the impugned order, has reversed the order in original of the adjudicating authority who dropped the proceedings for recovery of excess amount collected as duty by the appellants, under Section 11D of the Act. 2.The learned Counsel has contended that Notification No. 355/86-C.E., dated 24-6-86 allowed only set off of the duty paid by the appellants on the input cut tobacco used in the manufacture of cigarettes, towards the duty payable on the final product i.e. cigarettes and as such, they should be deemed to have paid full duty on the final product and thus were within their right to recover the full duty from the customers. He has also contended that on the final product i.e. cigarettes, the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Central Excise Rules allowing exemption of payment of duty on the final product of the amount equal to the amount paid as duty on the input cut tobacco and did not speak of any set off or taking of any credit on the duty paid on the inputs towards the discharge of duty on the final product. Therefore, the appellants could not collect the duty more that what they had paid on the final product and as such, are liable to deposit the excess duty with the Government under Section 11D of the Act. Regarding the limitation, the learned DR has contended that no limitation has been prescribed under the law/rules for effecting recovery under Section 11D of the Act and as such, the demand cannot be said to be time-barred. 5.We have heard b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment as well as consumers. The Notification has to be interpreted in a manner that it neither deprives the benefit to the persons entitled to nor enables those persons to misuse the benefit. Where there is no ambiguity in the wording of the exemption notification, the same has to be given effect to. It has to be interpreted keeping in mind its plain wording. 7.In the instant case, the wording of the above said notification is quite plain, clear, unambiguous and leaves no doubt to hold that it is a notification issued under Rule 8(1) of the Central Excise Rules allowing exemption from payment of duty on the final product i.e. Cigarettes, to a manufacturer to the extent to which he had paid the duty on the input i.e. cut tobacco. It no whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilized for payment of duty on the cigarettes cleared from the factory, cannot said to have changed the basic character of the notification. In fact, Trade Notice could not alter the plain wording of the notification in any manner. What had not been provided in the notification could not be substituted/replaced through a Trade Notice. Therefore, no capital out of this Trade Notice can be claimed by the appellants for contending that the notification is akin to the Modvat credit scheme. 9.Similarly, the Circular of the Board dated 1-4-81 which contained only instructions to the field officers and prescribed procedure to be followed for claiming set off under various exemption notifications, is also of not much avail to the appellants. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of exemption from payment of duty to the extent to which they had paid the duty on inputs, and another of collection of full duty from the customers. Having recovered the amount by way of duty, more than duty paid by the appellants, they are liable to deposit the same with the Government. The case of the appellants stand squarely covered by the provisions of Section 11D of the Act. The ratio of law laid down in Bripanil Industries Limited (supra) is not attracted to the case of the appellants. That was a case wherein additional excise duty (AED) was recovered by the assessee from the customers and the same was sought to be recovered and show cause notice was issued under Section 11D. The duty paid on the inputs and collected from the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also cannot be accepted. It has not been disputed before us that no limitation has been prescribed for the recovery of the amount collected in excess, by an assessee, by representing as duty from the customers under Section 11D. The Apex Court has, in para 6 of Government of India v. Citedal Fine Pharmaceuticals case (supra), observed that in the absence of any period of limitation, it is settled that every authority is to exercise the power within a reasonable period. But what is a reasonable time is to be decided by keeping in view the facts and circumstances of each case. In the instant case, the department no doubt wrote letter of 1-11-94 to the appellants bringing to their notice that they were wrongly charging full duty from the cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
