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TaxTMI 
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TaxTMI 
2026 (4) TMI 943
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....iling cenvat credit on the said inputs. Further, it was noticed that the appellant also during the relevant period, cleared the inputs under the category of 'as such clearance' to their sister concerns. While clearing the inputs / raw materials as such, the appellant had discharged duty on the transaction value of the inputs / raw materials cleared as such to their sister concerns by adding 10% to the purchase price on account of overhead charges and 10% as notional profit instead of reversing the actual credit availed on such inputs/raw materials. Alleged that the appellant had contravened the provisions of Rule 3(5) of the Cenvat Credit Rules, 2004 (CCR, 2004) and also wrongly utilised the credit in contravention of Rule 3(4)(b) of the CCR equal to the amount paid in excess i.e. Rs.3,73,56,725/- was proposed to be recovered under the provisions of Section 11(D)(2) of the Central Excise Act, 1944 (CEA, 1944) read with Rule 14(1) of CCR and Section 11A of CEA, 1944 along with interest and penalty for the period November 2011 to March 2016. On adjudication, the demand was confirmed and directed to be recovered in cash under provisions of Section 11(D)(2) of CEA, 1944 along with inte....
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....he Department invoking both Section 11D and Section 11A rests on different footings; hence, invocation of both these provisions simultaneously or alternatively in the notice is unsustainable in law. The irregularities in the first show-cause notice are evident as the learned Commissioner has dropped the proposal to demand duty in terms of Section 11A and also dropped penalty. He has submitted that if the basis of the show-cause notice is fallacious, then entire proceedings should fail. In support, he has referred to the judgment in the case of CCE, Bangalore Vs. Brindavan Beverages (P) Ltd. [2007(213) ELT 487 (SC)]. 3.3. Learned advocate has further submitted that confirmation of demand under Section 11D(2) is misconceived since the said provision is attracted in a situation where duty has been collected, but not deposited to the credit of the Government leading to unjust enrichment of an assessee. In the present case, mischief of Section 11D(2) will not be attracted since the appellant had rightly discharged the duty liability through utilisation of cenvat credit which is the permissible mode of payment of duty. In such circumstances, no case is made out under Section 11D(2) of....
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....Hon'ble Gujarat High Court in the case of CCE, Ahmedabad-II Vs. Inductotherm (I) Pvt. Ltd. [2012(12) TMI 856] is not applicable to the facts of the present case wherein the excess amount of duty collected from customers in cash held to be recoverable in terms of Section 11D of CEA, 1944. In the present case, the appellant had appropriately paid the amount collected to the Government; hence, there is no excess collection in relation to the amount paid to the Government by the appellant from their sister concern. Further, he has submitted that the payment made through cenvat credit account is as good as paid through PLA. In support, he referred to the following judgments:- i. Jayaswal Neco Ltd. Vs. CCE, Raipur [2015(322) ELT 587 (SC)] ii. SCT Ltd. Vs. CCE, Meerut [2006(202) ELT 814 (Tri. Del.)] iii. Sumeet Industries Ltd. Vs. Commissioner(Appeals), CE,C&ST, Surat-II [2016(10) TMI 183-CESTAT, Ahmedabad. iv. Nehru Steel Vs. CCE, Ghaziabad [2007(207) ELT 129 (Tri. Del.)] v. Sharada Polymers (P) Ltd. Vs. CCE, Bangalore [2006(206) ELT 550 (Tri. Bang.)] 3.5. The learned advocate for the appellant has further submitted that the demand confirme....
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....ere any inputs [or capital goods] are removed outside the premises of the provider of output service for providing the output service : Provided further that such payment shall not be required to be made where any inputs are removed outside the factory for providing free warranty for final products : "Section 11D. Duties of excise collected 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. (2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) and which has not been so paid, the Central Excise Officer may serve, o....
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....In the present case, the appellant has advanced a two-fold argument. First, they have said that the goods were not sold to any buyer but transferred to their sister concerns on stock transfer basis; hence, provisions of Section 11D are not applicable; also, it is argued that the amount in excess of the credit calculated by discharing duty on the value applying CAS4 method of valuation and though collected from their sister concern but paid to the Government, hence, no amount has been outstanding to be paid to the Government. Therefore, the said Section 11D(2) is not applicable to the facts of the present case. 10. We find merit in the contention of the learned advocate for the appellant. This Tribunal in the case of CCE, Thane-II Vs. Angadpal Industries Ltd. (supra) referring to the judgment of the Bombay High Court has held that for attracting provisions of Section 11D of the Act, there has to be a sale and in absence of evidence of sale, the provisions of Section 11D are not applicable. Further, it is the argument of the appellant that since the excess amount collected from their sister concern has already been deposited with the Government; therefore, demanding the excess amo....