2018 (10) TMI 692 – CESTAT NEW DELHI – TMI – Excess amount collected ‘in the name of Central Excise duty’ – section 11D(1) and (1A) of the Central Excise Act, 1944 – case of assessee is that since they are not liable to pay duty on the goods sold by them, the provisions of section 11D of Central Excise Act, 1944 are not applicable in their case for a period prior to 10.5.2008 and also that the excess amount collected by them in the name of Central Excise duty has already been returned back by them to their customers – time limitation.
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Held that:- It can be seen that section 11D(i) as it existed prior to 10.5.2008 provided that any person who is liable to pay duty under the Central Excise Act or rules, made thereunder need to pay back the excess amount collected by them, thus it appears on plain reading that it primarily covers the producer or manufacturer of excisable goods or the person storing such goods in a warehouse who pays the duty on excisable goods at the time of remova
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vat difference has been given back by them for a period April to June, 2009. But it is not a refund of excess amount collected by them rather for lack of evidence the possibility cannot be ruled out that buyer may have taken the credit of these cenvat difference in their books of accounts and might have used them for further passing the cenvat credit to their customers – it is not a proper return of the excess collected amount which was in the name of Central Excise duty.
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Time Limitation – Held that:- A plain reading of section 11D makes it evidently clear that no period of limitation has been prescribed under this particular section – in the present case, demand is purely and only under section 11D of the Central Excise Act wherein the law does not provide any period of limitation – demand not barred by limitation of time.
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Appeal dismissed – decided against appellant. – Excise Appeal No. 51579 of 2018 – FINAL ORDER No.53063/2018 – Dated:- 4-10-2018 – Mr. C L Mahar, Member
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06,199/- is allegedly collected in excess of what has been actually paid by them to the department. Both the show cause notices have demanded from the appellant to deposit the excess amount collected by them in the name of Central Excise duty under section 11D(1) and (1A) of the Central Excise Act, 1944. The matter has been decided by the Commissioner (Appeals) vide his order dated 31.1.2018 wherein the above mentioned amounts collected by the appellant have been confirmed to be deposited by the assessee to the department under Section 11D of the Central Excise Act, 1944. Learned advocate appearing on behalf of the appellant have assailed the confirmation of excess amount collected by them claiming the same as Central Excise duty under section 11D on the following grounds: (i) It has been contended by learned advocate that the provisions of section 11D of Central Excise Act, 1944 has been amended since 10.5.2008 wherein any person who collects an amount in excess of Central Excise duty
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tions of same are reproduced below: (1) Bharat Petroleum Corpn vs. CCE, Meerut 2002 (146) ELT 646 (Tri-Delhi)]; (2) CCE, Meerut vs. Bharat Petroleum Corpn. Ltd. [2011 272) ELT 654 (SC)]; (3) Hindustan Petroleum Corprn Ltd. vs. CCE Meerut I [2013 (298) ELT 450 (Tri-Delhi)] 2. The learned advocate has also submitted that demand is hit by limitation as the period of limitation has been made applicable to provisions of Section 11D also by Hon ble Madras High Court in its decision in the case of Gem Cables and Conductors Ltd. vs. CC Hyderabad [1994 (72) ELT 848 (Mad)] and since the demand can only be invoked for the normal period of demand as provided under section 11A of Central Excise Act. Most of the amount of demand, in the above mentioned two show cause notices is hit by period of limitation. The learned advocate has also relied upon the decision of this Tribunal in the case of CCE, Jaipur vs. Vinayak Agrotech Ltd. [2012 (284) ELT 237 (Tri-Del)] wherein it has been held that if any amo
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returned thereafter have become due to Central Government as same was illegal collection by the appellant assessee in the name of Central Excise duty. It has also been contested that the credit notes shown by the learned advocate claiming to prove that excess amount collected from customers have been paid by them is actually not the payment of excess amount rather they have authorised the customers to avail cenvat credit of excess amount paid by them to the appellant-assessee depot. Accordingly, the learned DR has contested the order in appeal. 4. We have heard both the sides and have perused the record of appeal. 5. It is admitted fact that appellant assessee depot is primarily an extension of M/s. HPCL and they have admittedly collected certain amount in the name of Central Excise duty in excess of the amount of excise duty paid by them at the time of clearance of various excisable goods to the appellant assessee depot. The basic ground on which the learned advocate has tried to defe
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nder 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, shall forthwith pay the amount so collected to the credit of the Central Government. Sub-Section (1A) was added to Section 11D vide Section 81 of the Finance Act, 2008 w.e.f. 10.5.2008 to provide as under: (1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government. 6. It can be seen that section 11D(i) as it existed prior to 10.5.2008 provided that any person who is liable to pay duty under the Central Excise Act or rules, made thereunder ne
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eads as under:- place of removal means – (i) A factory or any other place or premises of production or manufacture of the excisable goods; (ii) A warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without [payment of duty] (iii) A depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearances from the factory. 7. Thus, we find that the original manufacturer assessee had an option to clear his dutiable goods from their depot on payment of duty, however, same has been cleared from the factory gate and just because the depot has taken a separate registration as a first stage dealer does not mean that they are not part and parcel of manufacturer assessee namely M/s. Hindustan Petroleum Corporation Ltd. 8. Thus in view of the above, we feel that provisions of section 11D even prior to 10.5.2008 are applicable in case of appellant assessee and they are legally bou
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sions of section 11D are not relevant to demand the same amount from them. A glance at the manual credit Notes cited by the learned advocate is reproduced below for the convenience of analysis: 10. A perusal of the above credit note makes it clear that a credit of cenvat difference has been given back by them for a period April to June, 2009. In our opinion, it is not a refund of excess amount collected by them rather for lack of evidence the possibility cannot be ruled out we feel that buyer may have taken the credit of these cenvat difference in their books of accounts and might have used them for further passing the cenvat credit to their customers. Seen from this angle, it is not a proper return of the excess collected amount which was in the name of Central Excise duty. Thus, we feel that excess amount collected in the name of Central Excise duty by the appellant-assessee does not stand returned back to their customers and therefore, same need to be deposited with the Central Gove
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