Customs, Excise and Gold Tribunal - Delhi
Ballarpur Industries Ltd. vs Cce on 20 November, 2003
Equivalent citations: 2004(92)ECC616
JUDGMENT
S.S. Kang
1. The appellants filed this appeal against the adjudication order passed by the Commissioner of Central Excise.
2. The brief facts of the case are that the appellants are engaged in the manufacture of paper and paper board made from unconventional raw materials. The appellants were availing the benefit of Notification No. 6/2000-CE. As per the notification the first clearances of 3500 MT of paper and paper board were exempted if the same was manufactured out of unconventional raw material. The appellants started paying duty as per the tariff rate after crossing the limit of 3500 MT. A show cause notice was issued to the appellants for demand of duty under Section 11-D on the ground that the price of paper made from unconventional raw material has remained the same both during the period when exemption availed by the appellant and when duty was being paid, therefore, the appellants have collected the duty from the customers but have not deposited with the Revenue.
3. Heard both the sides.
4. The contention of the appellants is that during the period, they were availing exemption and they were clearing the goods on existed rate of duty. The appellants produced the copies of the invoices whereby the paper was cleared at nil rate of duty. The appellants also produced the invoices where the appellants cleared the goods at normal rate of duty after crossing the limit of 3500 MT. In these invoices, the rate of duty is mentioned 16%. The contention of the appellants is that during the period when they were availing the benefit of exemption, they have not collected any duty. The appellants relied upon the decision of the Tribunal in the case of Pitamber Coated Paper Limited v. CCE, 2003 (85) ECC 62 (T) : 2003 (152) ELT 392 wherein similar situation the Tribunal allowed the appeal.
5. The contention of the Revenue is that the price received by the appellants is cum-duty price, therefore, during the period when they were availing the exemption, component of duty was part of the price. Therefore, the appellants are not entitled to retain that duty. We find that during the period when they were availing the benefit of exemption, the appellants were clearing the goods showing the excise duty as is of date in their invoices. This fact is not disputed by the Revenue. Further, we find that the decision of the Tribunal in the case of Pitamber Coated Paper Limited (supra) is fully applicable in the present case. In the case of Pitamber Coated Paper Limited, the Tribunal held as under:
"No doubt, the appellants availed the benefit of exemption Notification No. 6/2000-CE 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 invoices issued by them during the disputed period when they were availing exemption benefit under the Notification No. 6/2000-CE and we find that the column BED had been left blank. In other 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 charaged 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.
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 CCE v. Bata India Ltd., 1996 (56) ECC 130 (SC) : 1996 (84) ELT 164 and by Karnataka High Court in Magalore Chemicals & Fertilizers Ltd. v. CCE, 1986 (8) ECC 6 (Kar): 1986 (23) ELT 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 judgment 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."
In view of the above decision of the Tribunal, the impugned order is set aside and the appeal is allowed.