2008 (2) TMI 226

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....ngaged in the manufacture of soda-makers [SH 8422.90 of the Schedule to the Central Excise Tariff Act] and were availing SSI exemption in terms of Notification No. 1/93-CE dated 28.2.1993 during 1995-96. About 70% of their production at Coimbatore Unit were transferred to their Head Office at Ernakulam and sold to various dealers and distributors. From the scrutiny of invoices raised by the head office, it appeared to the department that the appellants had collected 10% of price as Central Excise duty from their customers even while availing SSI exemption during the period 1.4.1995 to 6.10.1995. In a statement given on 9.2.1996 under Section 14 of the Central Excise Act, the Executive Director of the company admitted inter alia that the abo....

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....ions of Section 11D were not applicable to the case inasmuch as any duty of excise had not actually been collected from the customers. The party also contended that, as there was no wilful suppression of facts by them and no intention to evade any duty, it was not open to the department to invoke the proviso under Section 11A. In adjudication of the dispute, the Addl. Commissioner confirmed the demand under Section 11D r/w Section 11A and imposed a penalty of Rs.10,000/-. In appeal, the Commissioner (Appeals) sustained the decision of the lower authority. Hence the present appeal of the assessee. 2. Reiterating the grounds of the appeal, learned counsel submitted that the appellants in fact had not collected any duty from their customers ....

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....cidence of duty was not passed on to the buyer. Thus the evidence on record is against the appellants vis-a-vis the demand under Section 11D of the Central Excise Act. 3. Turning to the plea of limitation raised by the appellants, we find that there was no limitation provision under Section 11D and there was even no mechanism provided under Section 11D for recovery of any duty of excise collected by a person from his customer and not remitted to the Exchequer. The Finance Act, 2000 amended the Section providing for recovery mechanism with retrospective effect from the 20th day of September 1991. In the case of Eternit Everest Ltd. Vs. Union of India-1997 (89) ELT 29 (Mad.) cited by learned counsel, the Hon'ble Madras High Court had held, ....