Customs, Excise and Gold Tribunal - Delhi
Pitambar Coated Paper Ltd. vs Commissioner Of Central Excise on 19 August, 2002
Equivalent citations: 2003(85)ECC62, 2003(152)ELT392(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This appeal has been filed by the appellants against the impugned order-in-original dated 17-1-2002 passed by the Commissioner of Central Excise vide which he had ordered them to credit Rs. 97,30,152/- to the account of the Government under Section 11D(3) of the Central Excise Act.
2. The facts are not much in dispute. The appellants are engaged in the manufacture of paper and paper board falling under heading 48 of the CETA. On scrutiny of their record, it revealed that they by availing the benefit of exemption notification No. 6/2000-CE. dated 1-3-2000 (S. No, 77), cleared the goods at Nil rate of duty. During the period March 2000, the said paper was exempted upto 210 MT, while during the period 2000-2001 the aggregate quantity of 3500 MT was exempted. The price list furnished by the appellants showed that the price of their product was inclusive of excise duty and they continued to charge the same price during the exemption as well as duty payment period from their buyers. They collected duty at the rate of 16% from the buyers even during the period they availed the exemption from whole of duty of excise under the above said notification, but they did not deposit that amount into Government account, as required under Section 11-D of the Act. The duty collected, during the exemption period from 1-3-2000 to 31-8-2000 from the buyers, while availing exemption under the above said notification, amounted to Rs. 97,30,152/-. They were accordingly served with show cause notice for depositing this amount. They, however, contested the correctness of the notice by alleging that they had never collected duty from the buyers during the period in dispute when they availed the exemption from payment of duty under Notification No. 6/2000-C.E. dated 1-3-2000. The Commissioner, however, did not agree with the contention of the appellants and confirmed the duty demand, by observing that duty of excise was inbuilt in cum-duty price charged by them from the buyers and they were liable to pay the same to the Government in terms of Section 11D(1) of the Act.
3. The learned counsel has contended that provisions of Section 11-D(1) of the Act, were not attracted to the facts of the case as the goods cleared by the appellants to their buyers were not chargeable to any excise duty being exempt under Notification No. 6/2000-C.E. Those goods were never assessed to duty and no amount in excess of such duty was collected by the appellants from the buyers. He has further argued that there is nothing on the record to suggest that the appellants ever collected excise duty from the buyers. In the invoices, no amount of duty charged by them from the buyers had been indicated. The column 'BED' was always left blank and this showed that no basic excise duty was charged from the buyers. Whenever, BED was charged from the buyers prior to exemption or after the exemption, the same had been independently and separately shown in the invoices. Therefore, according to the counsel, it could not be presumed that the price charged was inclusive of duty. The impugned order of the Commissioner is illegal and liable to be set aside.
4. The learned JDR, on the other hand, only reiterated the correctness of the impugned order.
5. We have heard both the sides and gone through the record.
6. No doubt, the appellants availed the benefit of exemption Notification No. 6/2000-C.E. dated 1-3-2000 during the period 1-3-2000 to 31-8-2000 and cleared the goods on the same price on which they were clearing earlier to that period. They did not reduce the sale price of the goods. But, in our view, no presumption that they still collected duty from the buyers or that the duty was inbuilt in the price charged by them from the buyers at the time of sale of the goods to them, could be drawn. The appellants have placed on record the copies of the invoices issued by them during the disputed period when they were availing the exemption benefit under the notification No. 6/2000-CE. and we find that the column of BED had been left blank. In another words, no BED was charged by them from the buyers while selling the goods to them. No presumption that duty was inbuilt in the cum-duty price recovered by them from the buyers, could be drawn, as whenever they had charged the duty, they had shown it in the invoices against the column BED as we find from the copies of some of the invoices placed on record.
7. Similarly, the fact that the appellants continued to sell their goods to the buyers at the same price at which they were selling earlier, even during the disputed period when they availed the duty exemption under the above referred notification, could not also warrant a presumption that the price recovered by them from the buyers included the duty element also. In their invoices against the duty column, they had shown nil recovery of duty by putting the X. The ratio of law laid down by the Apex Court in ACCE v. Bata India Ltd. - 1996 (84) E.L.T. 164 and by Karnataka High Court in Manga-lore Chemicals & Fertilizers Ltd. v. ACCE - 1986 (23) E.L.T. 48, referred by the learned Commissioner in the order, do not advance the case of the department for want of evidence to prove that the price charged by the appellants from the buyers represented the duty also. The judgments in both these cases had been rendered prior to the insertion of Section 11D. Sub-section (1) of said section enacts that every person who had collected from the buyers of the goods, the amount in any manner as representing excise duty, shall forthwith pay the amount to the credit of the Government. For invoking the provisions of this section it is quite evident that it must be proved that the amount had been collected by the assessee from the buyer of the goods as representing excise duty. But there is not an iota of evidence on record that in the instant case, the appellants had Collected the amount from the buyers as representing excise duty. As observed above, in their invoices against column BED, they had put a X which indicated that they had not accepted any amount representing as excise duty from the buyers. Whenever, they had collected earlier to the availment of the exemption from payment of duty under the notification in question, they had separately shown the rate of duty recovered from the buyers of the goods, against the column BED. This fact is quite evident, as discussed above, from the copies of the invoices placed on the record by the appellants. Therefore, the provisions of Section 11D of the Act could not be invoked against the appellants.
8. In the light of the discussions made above, the impugned order of the Commissioner cannot be sustained and the same is set aside. The appeal of the appellants stands accepted with consequential relief.