TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 735
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....fter 1992, they have discontinued the manufacture of regular products and continued manufacturing only the UT Products. All the goods cleared by the factory were sent to their depots and the goods were thereafter sold from depots only. The depot invoices raised to the customers indicated only the consolidated price and did not separately indicate the amount of excise duty on the products. In respect of the products on which they have paid excise duty, they charged certain price and they charged an identical price in respect of the products containing fly ash on which no excise duty was paid by availing the benefit of exemption. It is the case of the department that as the price charged for the exempted products (UT products) was the same as that of the other products on which excise duty was paid, an amount by way of excise duty was indirectly collected by the assessee from their customers and such amount needs to be deposited in the Government exchequer under Section 11D of the Central Excise Act, 1944. Coming to such a conclusion, 10 show cause notices were issued to the appellant and the demands were confirmed. Deciding the writ petitions filed by the appellant, all ten show cau....
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....y collected consolidated an amount as all inclusive price and they have not, as a business policy decision, made a distinction between those products in which Fly Ash was used and exemption notification was claimed and those products in which Fly Ash was not used and exemption was not claimed. They charged the same price for both type of products. In other words, they have enhanced their profits in respect of the products in which exemption notification was claimed. The department sought to recover the same by reverse calculation reckoning the amounts which they have collected from their customers as cum-duty prices. 3. As a second argument, Ld. Counsel draws the attention of the Bench to Section 11D as applicable during the relevant period, which casts an obligation on every person who is liable to pay duty under this Act or the Rules made thereunder and has collected an amount in excess of the duty assessed or determined and paid on any excisable goods under the Act or Rules in any manner as representing duty of excise to forthwith pay the amount so collected to the Central Government Provisions of sub-section (2) & (3) of Section 11D were introduced retrospectively in 2000 prov....
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....e demand is not sustainable even on this ground. His fourth argument was that the relevant period is February 1992 to December 1995 while the SCN was issued on 07.09.2011 well beyond the period of five years. Although Section 11D has no time limit to issue a show cause notice, the Hon'ble High Court of Allahabad in the case of CCE Vs Standard Niwar Mills [ 2013 (296) ELT 164 (All.) ] has held that limitation under Section 11A should also apply to Section 11D. Viewed from this point, the entire demand is also time-barred and therefore needs to be set aside. He relies on the following judgements / orders to assert that unless an amount is clearly shown as representing excise duty no demand under Section 11D is invokable : 1. Bannari Amman Sugars Ltd. v. CCE [2018 7 TMI 415 - CESTAT CHENNAI] 2. Bharat Petroleum Corpn. Ltd. v. CCE [2016 11 TMI 145 - CESTAT HYDERABAD 3. Bharat Petroleum Corpn. Ltd. v. CCE [2016 2 TMI 1046 - CESTAT NEW DELHI 4. Mayfair Polymers v. CCE [2009 (234) ELT 663 (Tri. - Ahmd.)] 5. Todi Rubber Pvt. Ltd. v. CCE [2018 (361) E.L.T.737 (Tri. - Mumbai)] 6. Shree Shyam Pulp And Board Mills Ltd. v. CCE [2018 (364) E.L.T.20....
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....he duty element of the inputs is taken into account while fixing the price of that final product it would amount to indirectly passing of the incidence of duty. The same analogy should apply to Section 11D which is just corollary of concept of unjust enrichment under Section 11B. He further argued that Section 11D specifically states that where any amount has been collected as representing duty from the buyer of the goods in any manner, the same has to be paid to the credit of the Central Government. He would assert that the key words used are "in any manner". In this case the manner in which they have collected the amount as representing excise duty is by charging a consolidated price specifically stating that the price is inclusive of excise duty. Further, the pricing of the products by the appellant can be understood by comparing the pricelist of the exempted gods and the price list of duty paid goods. There is no price difference between the two sets of goods and this matter is undisputed. Therefore, the assessee has collected amount from the customer for the goods representing this as inclusive of excise duty when no duty was payable by them at all. Therefore, the amount so co....