TaxTMI 
TaxTMI 
TaxTMI 
2000 (2) TMI 112
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....g the period mentioned earlier under provisions contained in section 11A of the Central Excises & Salt Act, 1944. The petitioner was also called upon to pay the amount of Rs. 24,49,262.00 as basic excise duty being the differential amount of Central Excise Duty. The petitioner was also called upon to show cause as to why penalty under Rule 173Q(1) should not be imposed. From the text of the notices, it appears that the allegation was that the petitioner contravened the provisions of rules 9(1), 173C, 173F, 173G and 226 of the Central Excise Rules, 1944 (herein after referred to as the Rules), the details of which are mentioned in paragraph 23 of the show cause notice (at page 49, running page 294) as under :- It appears that M/s. Parle International Ltd., Ahmedabad23. have contravened the provisions of Rules 9(1), 173C, 173F, 173G and 226 of the "Said Rules" inasmuch as :- (i) they have deliberately suppressed the correct assessable value and have removed the NABB units from their factories without payment of proper Central Excise Duty as required under rule 9(1) of the 'Said Rules'; (ii) &n....
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....ty fails to do so, the payment made by the party would be deemed to have been paid without any protest. 5.The second point raised in the Show Cause Notice was that the amount of Rs. 1,50,00,000.00 paid on 29-6-1994 vide letter dated 29-6-1994 though under protest, it was paid to the Collector instead of Assistant Collector, and it did not bear any date of acknowledgment. It was further indicated that in view of section 11B(1) of the Central Excise Rules, 1944, the duty amount claimed is time-barred. It was further pointed out that under the provisions of Sec. 11B of the Act, the incidence of duty of excise having been passed over to other persons, the refund is to be credited to the Consumer Welfare Fund. It was pointed out that no material has been placed to indicate that the incidence of duty has not been passed on to any other person. The petitioner was called upon to file a reply to the show cause notice within a period of 15 days. 6.To the said three show cause notices, replies were given indicating that the counsel is out of India and services of the counsel being not available, reply will be filed shortly. The petitioner thereafter filed this petition, inter alia, contendi....
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....as not passed the incidence of duty to any other person, then only he would be entitled to get the amount of refund, and not otherwise. 9.In view of what is stated hereinabove , Mr. K.S. Nanavati, learned Counsel appearing for the petitioner with Mr. Vakil submitted that the Respondent No. 3 has exceeded his powers and has issued show cause notices which are without jurisdiction. The question is whether the amount paid was "deposit" or "duty" and whether the said amount is required to be refunded or not. With a view to canvass the submission that the amount paid was "deposit", Mr. Nanavati submitted that under the Central Excise Act, there is a procedure for levy and collection of duty which is defined under Chapter II. He drew our attention to sub-section (1) of section 3 of the said Act, which reads as under :- 3(1). There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods which are produced or manufactured in India as, and at the rates, set forth in the Schedule to the Central Excise Tariff Act, 1985; 10.Mr. Nanavati submitted that schedule to the Central Excise Tariff Act, 1985 prescribed the rates and it is not the case....
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...., then the matter would stand on a different footing. If the petitioner has satisfied the Tribunal that the value of its product was correct and, therefore, he was not liable to pay any further amount, there is no question of considering whether clause (d) of proviso to sub-clause (2) of Section 11B of the Act would apply or not. 12.It is required to be noted that under the Central Excise Act, there is only one duly and that has been imposed on the manufacturer. The duty on the excisable goods has to be paid before the clearance of the goods. in the manner and mode laid down under the Act and the Rules. The Act does not impose any other duty. The excise Department is not concerned with what happens to the goods after the goods are cleared. Reading Sec. 3 of the Act, it becomes clear that the amount paid at that stage is the amount of duty and that amount of duty can be presumed to have been passed on to others. It is not the case of the respondents that though the goods manufactured by the petitioner was excisable goods, petitioner had not prominently indicated the same in the invoice of sales and the amount of such duty did not form part of the price at which the goods were sold....
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.... to the assessee against an order or decision which necessitated him to deposit the duty under protest, he may file an appeal or revision within the period specified for filing such appeal or revision, as the case may be. (7) On service of the decision on the representation referred to in sub-rule (5) or of the appeal or revision referred to in sub-rule (6) the assessee shall have no right to deposit the duty under protest; Provided that an assessee shall be allowed to deposit the duty under protest during the period available to him for filing an appeal or revision, as the case may be, and during the pendency of such appeal or revision, as the case may be. (8) If any of the provisions of this rule has not been observed, it shall be deemed that the assessee has paid the duty without protest. NOTE : A letter of protest or a representation under this rule shall not constitute a claim for refund." 14.Reading the aforesaid provision, it becomes clear that at the time of payment of duty as mentioned in the aforesaid Rule, if the assessee has any objection to the rates etc. then he has to make payment under pr....
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....ar that there is no question of following the procedure laid down under section 233B of the rules and, therefore, that would not disentitle the assessee from recovering the amount paid and recovered by the Department in contravention of law. 17.Learned Counsel for the Revenue submitted that in the instant case, if the assessee would not have paid the amount and if the order would have been paid the amount and if the order would have been adverse to him, then the assessee would have to file an appeal and during that appeal either the assessee might have deposited the amount or the Tribunal might have protected the assessee. If the assessee had deposited the amount and the appeal was allowed, then the assessee would be entitled to get the same. 18.The amount of duty at the time of clearance of the goods is to be understood as duty paid at the time of clearance of the goods on the basis of the invoice. It is not the case that more duty was charged from the consumer and less was paid to the Revenue. Under Section 12A of the Act, every person who is liable to pay duty of excise on any goods at time of clearance of the goods has to indicate the amount of duty, which forms part of the p....