2015 (9) TMI 1148

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....ed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (for short CESTAT) by raising the following questions of law for adjudication. i) Whether Hon'ble CESTAT is right in setting aside the Order-in-Original passed by the Commissioner, after considering all the material facts, available to him which clearly show that Party had collected amounts representing the duty of Excise from their customers and not deposited the same to the Central Government, in contravention of the provisions of Section 11D of the Central Excise Act, 1944? ii) Whether the Hobble CESTAT is right in holding that the burden of proving collection of amounts representing the duty of Excise from their customers by the Party, is on the....

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....Government in terms of Section 11D of the Act. They had shown the amounts so collected as Packing & Forwarding charges in the central excise invoices while adding the same to the aggregate value of clearances. Hence, a show cause notice dated 22.03.2002 was issued to the respondent-assessee pointing out various discrepancies and proposing demand of the duty amount including other proposed recoveries. The appellant - Commissioner of Customs and Central Excise, who is the adjudicating authority, vide Order-in-Original dated 10.01.2003, confirmed the demand amounting to Rs. 39,74,576/- for the period 1998-99 to 2001-2002 (up to August 2001) under Section 11D of the Act which includes the demand of Rs. 10,37,391/- related to M/s.A.P.H.M.H.I.D.C....

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....of the case without insisting on pre-deposit. As regards the merits of the case, it appears that the Commissioner has assumed that in respect of all the clearances, the appellant has collected Excise Duty. If the department makes the allegation that the appellant had collected money representing Excise Duty, then the burden is on the Revenue to prove the same. In view of this position, the Order-in-Original has no merits. We set aside the same but remand the entire matter to the original authority to decide the case de novo after giving an opportunity to the appellant and after observing the principles of natural justice. The de novo order should be decided within four months from the date of this order. The factual aspects of the matter a....