Custom, Excise & Service Tax Tribunal
M/S. Rasoi Ltd vs Commissioner Of Central Excise, ... on 18 June, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Appeal No.EDM-284/05
(Arising out of Order-in-Original No.15/COMMISSIONER/CE/KOL-VII/ADJN/2004 dated 17.03.2005 passed by the Commissioner of Central Excise, Kolkata-VII.)
FOR APPROVAL AND SIGNATURE
HON'BLE SHRI S.S. KANG, VICE PRESIDENT
HON'BLE DR. CHITTARANJAN SATAPATHY, TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
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
Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
Authorities?
M/s. Rasoi Ltd.
Applicant (s)/Appellant (s)
Vs.
Commissioner of Central Excise, Kolkata-VII
Respondent (s)
Appearance:
Shri S.K. Bagaria, Sr.Advocate & Shri Partha Banerjee, Advocate for the Appellant (s) Shri D.K. Dutta, Advocate for the Respondent (s) CORAM:
Hon'ble Shri S.S.Kang, Vice President Hon'ble Dr. Chittaranjan Satapathy, Technical Member Date of Hearing:- 18.06.2009 Date of Pronouncement :- 18.06.2009 ORDER NO............................................................................
Per Shri S.S.Kang.
1. Heard both sides.
2. In the present case, the demand is for the period from 20.09.1991 to 30.09.1994. The demand is confirmed on the ground that the Appellants availed money credit under Notification No.45/89-CE dated 11.10.1989 in respect of the miner oils used in the manufacture of vegetable products and the demand is confirmed on the ground that the credit so taken under money credit scheme was essentially paper credit and the debit is also paper debit. However, while selling the final product the manufacturer collected the entire duty including the portion adjusted against the paper credit i.e. money credit from the customers. Therefore the Appellants are liable to pay the amount collected from the customers as duty under Section 11D of the Central Excise Act. Both the sides admitted that now that the situation is covered in favour of the assessee in view of the Board Circular No.651/42/2002-CX dated 07.08.2002 where it has been clarified that demand of duty under Section 11D in such a situation is not sustainable. For ready reference the Circular is reproduced below:-
Circular No.651/42/2002-CX., dated 07.08.2002 [From F. No.267/72/96-CX.81] Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs, New Delhi.
Subject : Cash recovery of money credit scheme - Applicability of Section 11D of the Central Excise Act, 1944 - Regarding. I am directed to invite reference to Board's Circular 216/50/96-CX., dated 4-6-96 [1996 (85) ELT T3] regarding applicability of Section 11D of Central Excise Act, 1944 to the cases in which money credit has been availed and utilized for the payment of duty on finished excisable products. It was directed not to take precipitative action to enforce demands as the matter was under examination by Board.
2. The matter has been examined. Board is of the view that Section 11D of Central Excise Act, 1944, requires a person liable to pay duty to deposit any amount collected in excess of the duty assessed or determined and paid on any excisable goods from the buyer of the goods in any manner as representing duty of excise. Therefore, in cases where duty collected has been deposited with the Government, Section 11D shall not apply. This position shall not undergo any change if the money credit available with the manufacturer is utilized to pay duty on any finished excisable product and this duty is collected from the buyer. Pending cases may be finalized accordingly.
3. Trade and field formation may be informed suitably.
4. Receipt of the same may be acknowledged.
5. Hindi version shall follow.
3. In view of the above Circular the impugned order is set aside and the Appeal is allowed.
(Pronounced and dictated in the open court.)
sd/ sd/
(CHITTARANJAN SATAPATHY) (S.S.KANG)
TECHNICAL MEMBER VICE PRESIDENT
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Appeal No.EDM-284/05