2022 (5) TMI 1035

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....nd were removed as such on the strength of invoices to M/s. Mayank Food Products, Indore and to M/s. Mahendra Industries Unit-II, Indore. The officers of Central Excise Audit, Indore also observed that while raising those invoices, the appellants have collected CVD and also the additional duty levied but the said amount collected has not been deposited by the appellants to the Government Exchequer. Being unsatisfied with the reply to the aforesaid query that the Show Cause Notice No. 2490 dated 16.08.2017 was served upon the appellants proposing demand of Rs.10,44,436/- as an amount of CVD (Rs.7,54,864) along with the amount of additional duty (Rs.2,89,572) as was allegedly collected by the appellant during the aforesaid period but was not ....

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....rs that the said amount of CVD and additional duty has been charged from them. Again paying back the same in terms of Section 28 B of the Customs Act, 1962 shall amount to case of double taxation on single import. Otherwise also, while not availing the Cenvat Credit on impugned CVD and additional duty but charging the same amount from the customers is a revenue neutral situation. Appellant has wrongly been held liable to still pay the amount of CVD and the additional duty that too with interest. Question of imposition of penalty does not at all arise. The order under challenge is accordingly prayed to be set aside. 4. While rebutting the submissions learned DR has relied upon the findings of Commissioner (Appeals) in Para 9 of the order ....

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....of credit in the said provisions (Sec 28B or Sec 11D) whether credit is availed by the Appellant or not. Since the duty has been collected from customers, the appellant has no other option but to pay the same to govt. exchequer. Accordingly, I hold that the adjudicating authority has correctly held that the Appellant is liable to pay the duty amount of Rs.10,44,436/- along with interest collected from their customers under the provisions of Section 28B of Customs Act, 1962 read with Section 11D of Central Excise Act, 1944." 5.2 Appellant while submitting today has produced on record documents in the form of commercial invoices through which the appellant has purchased the machines which got imported after purchase. The bill of entry file....

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....oner (Appeals) in Para 9 of the order under challenge itself are found erroneous as the demand has been confirmed for the reason that there is no mention of amount of excise duty. The finding/the reason quoted is apparently wrong as appellant has been an importer and not the manufacturer. Question of any amount of excise duty does not at all arise to ever be the liability of the appellant. Further the silence of any reference to the availment of credit in Section 28B of Customs Act or Section 11D of Central Excise Act is also observed to be an erroneous finding for the reason that irrespective both the sections are silent about the availment of credit but the simultaneous provisions in Rule 3 and Rule 5 of Cenvat Credit Rules entitle the ap....