2007 (1) TMI 192

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.... position to deposit the amount of duty. 2. The assessee is engaged in manufacturing of excisable items listed in the First Schedule of the Central Excise Tariff Act, 1985. It was issued a show cause notice on 17-9-2002 and demands for a total amount of Rs. 43, 24,933/- was raised for the period May 2000-2001. The assessee filed its reply to the show cause notice. The Commissioner (Appeals) after hearing the parties recorded a finding that the assessee had recovered an amount of Rs. 43,24,933/- during May 2000-2001 by representing the same as duty of excise on clearance of exempted lay flat tubing but the same had not been paid to the Department and it was recoverable under Section 11D of the Act. It was held that an amount of Rs. 3,45,995....

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....oner was that being a mere debit entry in the CENVAT account, no amount was due to be deposited in terms of Section 11D of the Act could not be used against it to non suit it at the threshold. The issue has to be adjudicated on the basis of the respective stands of the parties. If ultimately the stand of the petitioner is not accepted, the petitioner would be liable to deposit the said amount in the account of the Central Govt., as duty. In our opinion, it cannot be said that provisions of section 35F of the Act aren't applicable on facts in hand. Consequently, we set the impugned order and remand the case back to the Tribunal for consideration of petitioner's application  seeking waiver of pre-deposit." After remand by the Division....

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.... order refusing the interim stay, that prima facie, the applicant had recovered the amount by way of excise duty from the customers, and, therefore section 11D of the Act could be invoked. It appears that the application under Sick Industrial Companies (Special Provisions) Act, 1985 was made by the applicant on 24-6-2005. According to the learned counsel for the appellant, the application was sent on 23-6-2005, being the date on which the interim relief was refused. Apart from the fact that the application may have been strategically made of the interim relief being refused, it is clear from the ratio of the decision in Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai, reported in 2003 (155) E.L.T. 13 (S.C.), that payment of p....