- (1.) The above appeal has been filed under section 35-G of the Central Excise Act, 1944 by the Central Excise Department questioning the legality and validity of the order dated 13.12.2004 passed by the Custom, Excise and Service Tax Appellate Tribunal, New Delhi in E/A Nos. 2125-2126/04 - NB ( C ) whereby the Tribunal has confirmed the order passed by the Commissioner (Appeals).
(2.) The respondent mill is engaged in the manufacture and clearance of made up textile articles and processed textile falling under Chapters 63 and 52 of the Central Excise Tariff Act, 1985 respectively. The Excise Department received an information that the respondent has charged and collected the Central Excise Duty amounting to Rs.11,11,401/- in respect of supply of certain 'towels hand white' through supply order dated 14th of November, 1995 but has failed to deposit the Central Excise Duty. The proceedings against the respondent manufacturer was set to motion by issuing a show cause notice to the respondent manufacturer on the allegation that it has supplied the goods from the period April 1996 to June, 1996 and has charged the excise duty at the rate of 10 per cent amounting to Rs.11,11,400.86 but not debited either in PLA or in RG-23A/RG-23 C Part-II and thus, contravened the provisions of Rule 52-A (6) of the Central Excise Rules. The cause was shown by the respondent manufacturer by denying its liability. The allegations of contravention of Rules as well as charge of collecting the Central Excise Duty but not paying it to the credit of the Central Government were denied. The respondent manufacturer requested to provide copies of RT-12 return duly assessed for the year 1995-1996, triplicate copies of invoices issued during the period of demand and copies of audit report for the year 1995-1996. The request for supply of the documents referred to above made by the respondent manufacturer was rejected. The Additional Commissioner, Central Excise, Kanpur by his order dated 14th of November, 2003 asked the respondent manufacturer to pay an amount of Rs.11,11,401/- minus Rs.4,50,000/- which was already deposited, in terms of section 11D, imposed penalty of the like amount under Rule 173 Q (1) (a & b) of the then Central Excise Rules, 1944 read with section 38A of the Central Excise Act and a penalty of Rs.50,000/- was levied on Sri Ajay Agrawal, one of the partners of the respondent manufacturer Firm. The matter was carried in appeal before Commissioner (Appeals) who by the order dated 3.2.2004 allowed the appeal by setting aside the order in original with consequential reliefs. The Department carried the matter thereafter in second appeal before the Tribunal unsuccessfully.
(3.) On the following substantial questions of law, the present appeal has been admitted:- 1. Whether the Hon'ble Tribunal was right in not appreciating that the provisions of Section 11-D are independent of the provisions of Section 11-A and importing the specific period of limitation of Section 11-A in Section 11-D where there is really no limitation prescribed is not permissible in the light of law laid down by Apex Court in Commissioner Versus Raghuvar (India) Ltd., 2000 118 ELT 311? 2. Whether the Hon'ble Tribunal was right in holding that Section 11-D has got no application in this case due to the reason that no a single penny was paid towards the duty to the department while clearing the goods and therefore the question of receiving/collecting more duty than what was paid to the department by way of duty, did not arise, although the title of Section 11-D reads as "Duties of Excise collected from the buyers to be deposited with the Central Government?" 3. Whether the Hon'ble Tribunal was right in ignoring the word "determined" appearing in Section 11-D and fastening the applicability of Section 11-D only with the assessment while holding that "Mere issuance of the invoices by the respondents to the buyer while clearing the goods did not result in assessment of the duty specially when the respondents had not paid any duty whatsoever while issuing the invoice?";