TaxTMI 
TaxTMI 
2025 (12) TMI 1607
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.... duty as selling price / value was higher than the purchase price / value. As the appellant was required to pay duty on actual selling price and it appeared that the appellant had made short payment of duty as per Rule 3 (1) of Cenvat Credit Rules (CCR) 2004. Accordingly, Show Cause Notice dated 31st October, 2017 was issued for the period from October-2016 to June-2017 alleging short payment of Central Excise Duty by the appellant on "inputs cleared as such". The Show Cause Notice was adjudicated by the Adjudicating Authority vide order dated 24.05.2018. The Adjudicating Authority confirmed the demand of Central Excise duty of Rs. 2,97,277/- under Section 11A (10) of Central Excise Act, 1944 along with interest under Section 11AA of Central Excise Act, 1944 and imposed penalty of Rs. 29,727/- under Section 11AC (1) of Central Excise Act, 1944. 1.2 Being aggrieved from the Order-in-Original the appellant filed appeal before the learned Commissioner (Appeals). 1.3 The learned Commissioner came to the conclusion that in the instant case, though it has not been alleged in the SCN that the appellant was collecting any excess central excise duty, however, the Hon'ble Hig....
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....eir case. 3. The learned Authorised Representative for the department reiterated the impugned order passed by the learned Commissioner (Appeals) and submitted that in view of the provisions of Rule 3 (5) of Cenvat Credit Rules, 2004, the appellant was required to pay an amount equal to the credit availed in respect of such inputs and such removal shall be under the cover of an invoice referred to in Rule 9. There is no violation of the aforesaid rule in the appellant's case as they had reversed the said credit while clearing the input as such. In fact prior to this rule under the erstwhile Cenvat Credit Rules, 2002 prior to 1st March, 2003 thee was indeed a provision in form of Rule 3 (4) which required when inputs or capital goods on which Cenvat Credit has been taken are removal as such form the factory, manufacturer of the final product has to pay an amount equal to the duty of excise which is leviable on such goods at the rate applicable to the same on the date of removal and on the value determined for such goods under Section 4 of 4A of the Central Excise Act. But the said rule was substituted w.e.f. 1st March, 2003 in Cenvat Credit Rules, 2002 with the provisions ak....
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....ed. 4. I have heard the learned Counsel for the appellant and the learned Authorised Representative for the department and perused the records. 4.1 I am of the view that the learned Commissioner (Appeals) has passed the impugned order dated 12.11.2018 in accordance with the provisions of Rule 3 (4) and Rule 3 (5) of Cenvat Credit Rules, 2004 and Section 11D of the Central Excise Act, therefore, the impugned order passed by the learned Commissioner (Appeals) is sustainable. I also find that the impugned order dated 12.11.2018 has been passed in compliance of the law laid down by Hon'ble High Court of Gujarat in CCE Ahmedabad-II vs. Inducto Therm (I) Pvt Ltd reported in 2012-TIOL-929-HC-AHM-CX and the arguments of the learned Counsel for the appellant can not be accepted. In my view, it will be proper to reproduce the provision of Rule 3 (5) of Cenvat Credit Rules, 2004 as it existed at the relevant time which is as follows:- "(5) When inputs or capital goods, on which CENVAT credit has been taken, are removed as such from the factory, or premises of the provider of output service, the manufacturer of the final products or provider of output service, as the case may be....
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....ted from the buyer to be deposited with the Central Government (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any court or in any other provision of this Act or the rules made thereunder, [every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods] in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. [(1A) Every person, who has collected any amount in excess of the duty assessed or determined and paid on any excisable goods or has collected any amount as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government.] (2) Where any amount is required to be paid to the credit of the Central Government under [sub-section (1) or sub-section (1A), as the case....