2008 (6) TMI 434

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....dutiable products and avails Cenvat credit for the common inputs. (b)     They did not maintain separate accounts in respect of inputs meant for dutiable and non-dutiable goods manufactured. (c)     In respect of clearance of exempted products, they have reversed 8% of the value of goods cleared by them during 6-12-95 and 11-10-99, in terms of Rule 57CC(1). The assessee has also mentioned these amounts in the invoices to the customers and collected the said amounts from the customers. (d)    The original authority held that inasmuch as the amounts representing 8% of the value has been collected as representing excise duty, the same shall be payable in terms of Section 11D of th....

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....eal and seeks the restoration of the order of the original authority. 5. Learned Advocate appearing for the assessee submits that the demand relates to goods which are clearly exempted; no excise duty was payable on the goods; the amount was paid in pursuance of Rule 57CC due to the reason that they have availed credit on common inputs. Inasmuch as Rule 57CC has been complied with on the clearance of exempted goods, the question of paying the amount as excise duty under Section 11D does not arise. He relies on the decision of the Larger Bench in the case of Unison Metals Ltd. v. CCE, Ahmedabad-I [2006 (204) E.L.T. 323 (Tri-LB) = 2006 (4) S.T.R. 491 (Tri-LB)]. He also relies on the clarification issued by CBEC vide Circular No. 870/0....

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....he time of removal of the goods. The scheme of the law is that manufacturers shall not collect amounts falsely representing them as Central Excise duty and retain them, thus, unjustly, benefiting themselves. In the present cases, (irrespective of whether the 8% payments were duty or not) since the 8% amount remain already paid to the revenue, and no amount is retained by the assessee, Section 11D has no application. 10. The real identity of the amount 'collected' (whether excise duty payable or not) is of no relevance for Section 11D. What is relevant is only whether the collection was 'represented' as duty of excise. The representation may as well be entirely false. The qualifying of the representation through the words 'in any man....