2005 (6) TMI 344

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....pellant. Shri S.C. Pushkarna, DR, for the Respondent. [Order per : Justice R.K. Abichandani, President]. -  The appeal is directed by the applicant against the order of the Commissioner dated 8-10-2003 by which the Commissioner directed recovery of Rs. 43,24,933/- from the applicant under Section 11D of the Central Excise Act, 1944 against which an amount of Rs. 3,45,995/- already pa....

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....d by way of excise duty and, therefore, the provisions of Section 11D of the Act were inapplicable in the present case. The learned Counsel also submitted that the issue as to whether the provisions of Section 11D could be invoked in such cases, has been referred to a Larger Bench and, therefore, we should await the outcome of that reference. It appears that by order dated 23-2-2004 in Appeal No. ....

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....ere is again mention of the excise duty amount in words and figures. It is thus clear that the amount of excise duty at the rate of 8% was charged from the customers by the applicants under all these invoices. It is not shown whether original invoices bear the said rubber stamp. 4. According to the learned Counsel for the applicant, 'nil' duty was payable on the final products, and, theref....

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....round for awaiting its outcome and not making an order on the stay application. Moreover, the nature of the invoices in the present case clearly indicate that the applicant had at various places in the invoices stated that the amount was being charged from the customers by way of excise duty. Since admittedly no excise duty was payable, Section 11D comes into play and pendency of similar issue can....