2018 (7) TMI 317

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....appeal before the Tribunal has been filed by the Revenue. The respondent assessee have filed cross objection being CO-58/2009. 2. Ld. AC(AR) on behalf of the appellant Revenue submits that the respondent has a unit at Belgharia which manufactures couplers/bogies and supplies to the respondent's another unit at Agarpara as well as to other manufacturers. It is the case of the Revenue that the respondent collected the amount under invoice describing the amount of Rs. 8,82,41,261/- as Central Excise duty without depositing the same. Similarly they have also collected education cess amounting to Rs. 8,07,123/-. He further submits that Sl.No.4 of the Board Circular No.870/08/2008-CX dated 16.05.2008 has prescribed certain conditions. The Adju....

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....2006/RS(1) 954/12(ED) (Texmaco) dated 07.12.2006, the amount of 8% or 10% remitted by the manufacturer of Bogies and Couplers as per Rule 6(3)(b) of Cenvat Credit Rules would be reimbursed by the Railways as part of the cost of wagons supplied by the assessee company against submission of documentary evidence of payment of 8% or 10%. IT is also the averment of the ld. Counsel that Section 11D applies in cases of collection of any amount in excess of the duty paid representing the same as excise duty, by the person who is liable to pay excise duty on the goods. In the present case there is no dispute that the assessee company is not liable to pay duty on either couplers, bogies or wagons and therefore question of collection of any amount in ....

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....se duty is payable or not) is of no relevance of Section 11D. What is relevant is only whether the collection was 'represented' as duty of excise. The representation as well be entirely false. The qualifying of the representation through the words 'in any manner' makes this clear. Therefore, the contentions of both sides on the question as to whether deposits under Rule 57CC are excise duty or not, are beside the point" The said order of the Tribunal has been accepted by the department as communicated vide Circular no.870/08/2008-CX dated 16.05.2008. It is further clarified in the said Circular that as long as the amount of 8% or 10% is paid to the Government in terms of erstwhile rule 57CC of the Central Excise Rules, 1944 or rule 6 of ....