Custom, Excise & Service Tax Tribunal
Kirloskar Oil Engines Ltd vs Commissioner Of Central Excise, Nashik on 27 September, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No. E/25/06-Mum (Arising out of Order-in-Appeal No. CEX/AKD/147/APL/NSK/05 dated 6.10.2005 passed by Commissioner of Central Excise (Appeals), Nashik) For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Kirloskar Oil Engines Ltd. Appellant Vs. Commissioner of Central Excise, Nashik Respondent Appearance:
Shri Sailesh P. Sheth, Advocate, for appellant Shri A.B. Kulgod, Assistant Commissioner (AR), for respondent CORAM:
Honble Mr. Ramesh Nair, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) Date of Hearing: 8.9.2016 Date of Decision: 27.9.2016 ORDER NO Per: Ramesh Nair The adjudicating authority confirmed the demand of Rs.43,03,691/- under Section 11D on the ground that the said amount reversed @ 8% in terms of Rule 57CC on the clearance of exempted goods was recovered from the buyer. An appeal against the order-in-original filed by the appellant was also rejected by the learned Commissioner (Appeals) vide the impugned order. Therefore, the appellant is before us.
2. Shri Shailesh P. Sheth, learned counsel for the appellant, submits that the demand confirmed is against the amount which was reversed under Rule 57CC of the Central Excise Rules, 1944. The said amount is not the excise duty. Therefore, Section 11D does not apply. The issue is no longer res integra as the same is settled by various judgments as cited below:-
(i) Unison Metals Ltd. vs. CCE 2006 (204) ELT 323 (Tri.-LB);
(ii) Viral Control Pvt. Ltd. vs. CCE 2009 (235) ELT 681 (Tri.-Ahmd.);
(iii) Bharat Heavy Electricals Ltd. vs. CCE 2012 (286) ELT 256 (Tri.-Chennai);
(iv) Rochiram & Sons vs. CCE 2016 (336) ELT 609 (Raj.);
(v) Bharat Heavy Electricals Ltd. vs. CCE 2015 (329) ELT 318 (Tri.-Del.).
3. Shri A.B. Kulgod, learned Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates the findings of the impugned order.
4. On careful consideration of the submissions made by both sides, we find that the demand was confirmed and upheld in respect of the amount which was reversed by the appellant under Rule 57CC. The contention of the lower authority is that this amount was recovered as excise duty. Therefore, the same is liable to be paid in terms of Section 11D of the Central Excise Act. We find that the amount reversed under Rule 57CC is not excise duty. Therefore, the same cannot be recovered invoking Section 11D of the Central Excise Act. This issue is no longer res integra as the same has been settled in various judgments as cited by the learned counsel. Following the ratio of the said judgments, the demand confirmed by the lower authority under Section 11D is not sustainable. The impugned order is set aside and the appeal is allowed. (Pronounced in Court on 27.9.2016) (C.J. Mathew) Member (Technical) (Ramesh Nair) Member (Judicial) tvu 1 3 E/25/06