2015 (9) TMI 248 - AT - Central Excise

Appellant Granted Waiver & Stay on Rs. 5.17 Crores Demand

M/s Karnataka Antibiotics And Pharmaceuticals Ltd, Mr. R Radhakrishnan, Mr. Vijaykumar, Mr. Kutty, Mr SL Phadke Versus Commissioner of Central Excise & Service Tax, LTU, Bangalore

M/s Karnataka Antibiotics And Pharmaceuticals Ltd, Mr. R Radhakrishnan, Mr. Vijaykumar, Mr. Kutty, Mr SL Phadke Versus Commissioner of Central Excise & ... Issues:1. Demand raised against the appellant under Section 11D of the Central Excise Act for alleged recovery of excise duty from customers.2. Appellant's contention regarding the inclusion of excise duty in invoices due to software error.3. Comparison with a previous Tribunal decision involving a similar situation.4. Analysis of legal provisions under Section 11D and exemption notification.5. Consideration of limitation period for the demand raised.6. Public Sector Enterprise status and entitlement to waiver of pre-deposit and stay against recovery.Analysis:1. The main issue in this case revolves around a demand of over Rs. 5.17 crores raised against the appellant under Section 11D of the Central Excise Act. The allegation is that the appellant recovered excise duty from customers, which was not paid to the exchequer due to the area-based exemption notification enjoyed by the manufacturers located in Himachal Pradesh.2. The appellant explained that the mentioning of excise duty in the invoices was due to a software error, and no extra amount on the excise duty element reflected in the invoice was added to the total value of the goods sold. The appellant contended that the excise duty element mentioned in the invoice was not collected from customers in excess of the value of the medicines.3. The Tribunal referred to a previous decision involving a similar situation where it was held that if the price fixed by the Drugs Price Control Order (DPCO) includes excise duty and no extra amount is collected from customers, Section 11D does not apply. The Tribunal granted stay in that case.4. Section 11D (1A) of the Central Excise Act was analyzed, which requires payment to the government if any amount is collected in excess of the duty assessed or determined. The appellant's case involved a situation where the manufacturers did not pay excise duty, and the invoices showed the excise duty element, leading to the conclusion that the amount collected included excise duty.5. The issue of the limitation period for the demand raised was raised, as the show-cause notice was issued beyond the normal period of limitation. The Tribunal emphasized the need for detailed verification of facts and consideration of legal issues and judicial pronouncements.6. Considering the appellant's status as a Public Sector Enterprise and the contentious nature of the issue, the Tribunal granted complete waiver of pre-deposit and stay against recovery during the pendency of the appeals. The decision highlighted the need for a comprehensive examination of facts and legal history related to Section 11D before holding the appellants liable.