AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 548
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....l machining centre and other machines falling under Chapter 84 of First Schedule to the Central Excise Tariff Act, 1985. The appellant during the period in question were availing the benefit of Cenvat Credit on inputs, input services and capital goods used in the manufacture of finished goods cleared on payment of excise duty. The appellant were also clearing certain inputs as such on payment of excise duty on the transaction value. The case of the department is that in case of clearance of input as such in terms of Rule 3 (5) of Cenvat Credit Rules, 2004 the appellant is required to pay an amount equal to Cenvat credit availed on such inputs and since, the appellant have paid the duty over and above such Cenvat amount, the same is recovera....
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....t availed on the inputs removed as such the excess amount collected by the appellant is recoverable as per the statutory provision of Section 11D of the Central Excise Act, 1944. Therefore, the demand was rightly confirmed and upheld by the lower authority. 4. We have carefully considered the submissions made by both the sides and perused the records. Having considered the fact of the present case, we find that the appellant have paid the excise duty on the removal of input as such on the transaction value, the said excise duty was found to be in excess to the actual Cenvat Credit involved in such removal of input as such. Therefore, the revenue has demanded the excess amount under Section 11D of Central Excise Act, 1944 which reads as u....
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....f the Central Government.] (3) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under 6[subsection (1) or sub-section (1A) or sub-section (3), as the case may be, shall be adjusted against the duty of excise payable by the person on finalisation of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in 7[sub-section (1) and sub-section (....
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....t paid duty 16% Adv. duty at the time of clearance of the goods and also availed Cenvat credit. It is seen that the Appellant did not retain the amount collected from the customers. The Tribunal in the case of Sterlite Industries (India) Ltd. v. CCE, Vapi - 2008 (225) E.L.T. 397 (Tribunal-Ahmd.) held that duty paid from Cenvat Account also excise duty and recovery under Section 11D of the Act is not sustainable. The Larger Bench of the Tribunal in the case of Unison Metals Ltd. v. Commissioner of Central Excise, Ahmedabad-I reported in 2006 (204) E.L.T. 323 (Tribunal-LB) = 2006 (4) S.T.R. 491 (Tribunal-LB) held as under :- "9. The scheme of Central Excise duty payment is that a manufacturer removed goods from the factory of product....
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.... on the question, as to whether deposits under Rule 57CC are excise duty or not, are beside the point." 5. In the present case, the Appellant paid duty on the exempted goods and collected the amount from their customers as evident from the invoice. It is noted that the Appellant had not retained any amount and paid to the Government and, therefore, Section 11D of the Act cannot be invoked. So, the impugned order is not sustainable, and it is set aside. The Appeal is allowed with consequential relief." B. The above decision of the Tribunal has been upheld by the Hon'ble High Court of Rajasthan reported at Union of India vs. Shivam Metals 2015 (326) E.L.T. 558 (Raj.) wherein, the Hon'ble High Court has observed as under:- ....
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....to Board"s Circular 216/50/96-CX, dated 4-6-1996 regarding applicability of Section 11D of Central Excise Act, 1944 to the cases in which money credit has been availed and utilised for the payment of duty on finished excisable products. It was directed not to take precipitative action to enforce demands as the matter was under examination by Board. 2. The matter has been examined. Board is of the view that Section 11D of Central Excise Act, 1944, requires a person liable to pay duty to deposit any amount collected in excess of the duty assessed or determined and paid on any excisable goods from the buyer of the goods in any manner as representing duty of excise. Therefore, in cases where duty collected has been deposited with the G....