Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, ... vs M/S Wipro Gemedicals Systems Pvt Ltd on 14 November, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL BANGALORE Final Order No. 22035 / 2014 Application(s) Involved: E/CROSS/46/2008 in E/499/2007-SM Appeal(s) Involved: E/499/2007-SM [Arising out of the Order-in-Appeal No. 62/2007 dated 29/03/2007 passed by the Commissioner of Central Excise (Appeals-I), Bangalore] Commissioner of Central Excise, BANGALORE-I POST BOX NO 5400, C.R. BUILDINGS, BANGALORE 560001 Appellant(s) Versus M/s WIPRO GEMEDICALS SYSTEMS PVT LTD 4,KADUGODI INDUSTIAL AREA, BANGALORE-560067. Respondent(s)
Appearance:
Mr. Mohd Yusuf, A.R. For the Appellant Mr. B. V. Kumar, Advocate For the Respondent CORAM :
HON'BLE SHRI B.S.V. MURTHY, TECHNICAL MEMBER ________________________________________ Date of Hearing: 14/11/2014 Date of Decision: 14/11/2014 Per B.S.V. MURTHY Issue involved in the present case is whether provisions of Section 11D of Central Excise Act, 1944 would apply to the impugned goods, which were cleared at nil rate of duty after the respondent-assessee reversed 8% of total price of such goods cleared during the period from 1.3.2003 to 31.5.2004. In the impugned order, it has been held that the assessee could not have collected amount 8% reversed by them and once it is collected from the customers, as per the provisions of Section 11D of the Central Excise Act, 1944, the same has to be paid to the Government account.
2. Learned counsel on behalf of the respondent relied upon the decision of the Tribunal in the case of Unison Metals Ltd. vs. C.C.E., Ahmedabad-I [2006 (204) E.L.T. 323 (Tri.-L.B.)] to submit that the respondent is entitled to collect the same.
3. I have considered the submissions made by both sides. The Board has issued a Circular No. 599/36/2001-CX dated 12.11.2001 wherein it has been clarified that 2. The matter has been examined by the Board and it is clarified as under :
(a) Rule 57CC does not envisage the amount would be separately realised from the buyer since it is to be calculated on the total price charged to the buyer.
(b) When the 8% amount is shown separately on invoice as an amount (not as excise duty) Section 11D would not get attracted. In that case the amount of 8% would have to be calculated on the total price charged from the buyer.
(c) In case the amount of 8% or for that matter any amount representing an excise duty is recovered from buyer Section 11D gets attracted. This is a matter of fact to be ascertained on the basis of documents.
4. However, after decision of Larger Bench of the Tribunal in the case of Unison Metals Ltd. (supra), the Board has examined the circular and clarified that in the case of payment made under erstwhile Rule 57CC(1) corresponding to Rule 6(3) of Cenvat Credit Rules, 2004, Section 11D of the Act is not applicable since the amount of 8% or 10% has already been paid to the Revenue and no amount is retained by the assessee. It was also stated by the Board that this decision has been accepted. At this stage, learned A.R. submitted that the customers might have taken credit of duty paid. However, there is no evidence to show such is the case and this is not a ground also and this cannot be a ground even after the Boards Circular. In view of above, appeal filed by the Revenue is devoid of merits and is rejected. Cross Objection filed by the respondent-assessee also gets disposed of.
(Operative portion of the order has been pronounced in open court) (B.S.V. MURTHY) TECHNICAL MEMBER /vc/