Section 11D recovery fails where no evidence shows collection of duty over and above the amount actually paid.

A fixed-price supply contract was treated as involving a cum-duty price, but recovery under Section 11D of the Central Excise Act was not attracted because the record did not show that the assessee collected any amount from the buyer in excess of the duty actually assessed and paid. A contractual reference to prevailing excise duty rates was insufficient to prove collection of additional duty. In the absence of evidence in the invoices or assessment records showing over-recovery, the statutory condition for Section 11D recovery was not met.

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Issues: Whether the assessee had collected any amount in excess of the duty actually assessed and paid so as to attract recovery under Section 11D of the Central Excise Act, 1944.

Analysis: The assessee supplied goods under a fixed-price contract and the quoted consideration was treated as a cum-duty price. The record did not show that the invoices or assessment documents reflected collection of duty in excess of the duty paid to the department. Mere reference in the contract to prevailing rates of excise duty did not establish that any higher amount was collected from the buyer as excise duty. In the absence of evidence showing collection of an amount over and above the duty actually paid, the statutory requirement for recovery under Section 11D was not satisfied.

Conclusion: Recovery under Section 11D was not sustainable, and the assessee succeeded on the issue.

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