TaxTMI 
TaxTMI 
2019 (3) TMI 303
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....ntral Excise Act, 1944 is not applicable in this case, when it has not controverted the finding of fact by the adjudicating authority that the process undertaken by the assessee amounts to manufacture and whereby, the assessee becomes a person liable to pay duty, in terms of Section 11D of the Central Excise Act, 1944 read with Rule 4 of the Central Excise Rules,2002 and as such the finding of the CESTAT is perverse ? (b) Whether in the facts and circumstances of the case, the CESTAT was right in holding that Section 11D of the Central Excise Act, 1944, is not applicable in this case when the evidence on record clearly establishes that the assessee, being a manufacturer of EBP and liable to pay Central Excise Duty, have collected Central E....
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....ts of law. Penalty is impossible if duty is collected over and above the duty liable to pay and such excess amount is not deposited in treasury. That not being the present case, the demand levied under Section 11D is to be set aside. 5. Appeal is accordingly allowed." 5. Ms. Desai, learned counsel for the Appellant submits that in terms of Section 11D of the Central Excise Act, 1944 once it is established that the assessee has collected an amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the Rules made thereunder from the buyer of such goods, in any manner as representing duty of excise, then, such assessee shall forthwith pay the amount so collected to the credit of the Central ....
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....ing the disputed period. He points out that all that was collected was a composite price. 8. From the perusal of the impugned order made by the CESTAT, it is clear that the CESTAT has proceeded on the basis that the assessee in the present case had not collected any duty over and above the duty liable to be paid. On this basis, CESTAT concluded that the provisions of Section 11D of the said Act, which, even otherwise, are penal in nature, were not attracted. 9. The CESTAT, has however failed to even advert to, much less consider the statement of Shri Subbaraj as reflected in the order in original dated 31st August, 2007. In para 5.1.1., it is recorded that Shri Subbaraj, the representative of the assessee, on being asked stated that the a....