2019 (2) TMI 753

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....of sugar. Sugar factories were given an incentive scheme by the Ministry of Food and Civil Supplies vide letter F.No.3(2)/86-PC/Vol-II dated 04.11.1987. During the period, there were two types of clearances of sugar. Levy sugar to be cleared at a lower rate fixed by the Government and free sale sugar which could be sold at a higher market determined price. As per the incentive scheme, sugar units were required to remit excise duty as per the rate applicable to levy sugar and were entitled to retain the difference in the excise duty between the levy and free sale sugar. The excise duty amount so retained was to be used for payment of term loans, etc. Corresponding exemption notifications were issued for basic excise duty vide notification 14....

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....r 11 years by citing the provisions of the amended Sec.11D. After due process, the Commissioner, vide impugned order dated 12.08.2011, confirmed the demand for recovery of the differential amount under Sec.11D. Learned counsel for the appellant submits that in the case of Kisan Sahakari Chini Mills Ltd [2011 (273) ELT 289] the Tribunal-Delhi has, in an identical case, held that once it is not in dispute that whatever amount was collected by the appellant was in terms of the said scheme, one fails to understand how the said amount can be considered as an amount of duty in excess and recovered under Sec.11D. He submits that this decision was subsequently affirmed by the High Court of Allahabad. He fairly submits that there were also contrary ....

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....e amounts collected as representing excise duty from the buyer were not deposited by the assessee. These were introduced in 2000 and were made applicable w.e.f. 1991. Therefore, in the first round of litigation the original authority was asked to keep the proceedings till the provisions of recovery were set up. However, the provisions of Sec.11D did not specify time within which the demand has to be raised. 6. We have considered the arguments on both sides and perused the records and we find that with regard to the applicability of the provisions of Sec.11D where the incentive was given to the assessee as per some scheme under which they could collect excise duty at higher rate and deposit a similar amount with the department, we find th....