TaxTMI 
TaxTMI 
2003 (4) TMI 213
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....uty. The appellants are using common inputs for both the aforesaid dutiable and exempted final products. The appellants were availing Modvat credit of the duty paid on such inputs. Accordingly, the appellants have been paying an amount equal to 8% of the sale price of exempted hot-rolled pattas and patties in terms of Rule 57CC(1) as it stood prior to 1-4-2000 and under Rule 57AD with effect from 1-4-2000 whenever such hot-rolled pattas and patties were cleared from their factories, the provisions under both the Rules are similar. 2.According to the learned Counsel, the department's case is that the appellants have collected 8% of the sale price of exempted goods from their buyers and, therefore, in terms of Section 11D of the Central Exci....
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....Delhi - 2001 (138) E.L.T. 331 (Tri.-Del.) (3) C.B.E. & C. Circular No. 598/35/2001-CX., dt. 9-11-2001. 4.Shri S.S. Bhagat, learned S.D.R. appearing for the appellants argues that the amount of 8% paid under Rule 57CC is towards adjustment of the credit of duty in respect of inputs used in the exempted product. Since the appellants have in addition recovered 8% from their customers as excise duty in respect of exempted goods, Section 11D applies to them and they are required to deposit the amount recovered by them under the said section as has been rightly ordered by the Commissioner. He also points out that the appellants have been issuing two sets of invoices and they have been recovering 8% clea....
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.... either a manufacturer does not take any credit of duty on inputs used in manufacture of exempted final products or when he takes such credits and produces both exempted and dutiable products and he is not able to maintain separate accounts, he is required to pay an amount of 8% in respect of the exempted final goods. The logic of charging 8% perhaps lies in the fact that for most excisable goods the general rate of excise duty is 8%. We must mention that there is a separate provision under Rule 57CC(5) in respect of specific categories of final products in respect of which the amount payable is not 8% but is equivalent to the credit of duty on the inputs contained in such final products. Though sub-rule (5) of Rule 57CC is not applicable t....
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....wing three conditions are satisfied :- (1) The person must be liable to pay duty. (2) The amount collected must be in excess of the duty assessed or determined and paid on excisable goods. (3) The amount should be collected in a manner representing duty of excise. 8.In the instant case, we are concerned with the exempted final product manufactured and sold by the appellants. The appellants have paid an amount of 8% in respect of these goods under Rule 57C(1), since they have taken credit of input duty which is otherwise not admissible to them. As these final products are otherwise exempted, it cannot be said that....
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.... that the appellant collected the surcharge representing the same as duty of excise. It also appears to have prevailed with the Tribunal that "during the period of exemption, he (the respondent) was not liable to pay any duty at all." It is a fact that in the instant case, as far as the impugned goods are concerned, the same being exempted from duty, the appellants are not liable to pay duty under the Act or the Rules. All that they are required to pay and have paid is an amount of 8% under Rule 57CC(1) as has been contended by the learned Advocate for the appellants. This amount cannot be considered as duty under Section 3 of the Act and it is also not called a duty under the said Rule 57CC(1). In fact duty has been defined under Rule 2(v)....