- (1.) BRIEFLY stated the facts of the case are that a show cause notice dated 17th January, 2006 (Annex.1) was issued to respondent by Assessing Officer i.e. Dy. Commissioner, Central Excise to the effect that as to why the amount of Rs.29,342/- should not be recovered from it along with interest under the provisions of Rule 14 read with provisions of Section 11A and 11AB of the Central Excise Act, 1944. It was also mentioned in the notice that wrongly utilised Cenvat Credit of Rs. 28219/- so collected from their customers in the guise of Central Excise duty be not recovered.
(2.) THE Assessing Officer vide its order dated 22nd March, 2006 passed an order against assessee for recovery of Rs.28,219/- collected from their customers in the guise of Central Excise duty from them in cash in terms of the provisions of Section 11D of the Central Excise Act 1944. The Assessing Officer also imposed a penalty of Rs. 5000/- under Rule 25 of the Central Excise Rules, 2002. Being aggrieved with the aforesaid order, the assessee/respondent preferred an appeal, which was dismissed by the appellate authority vide order dated 28th June, 2006. Thereafter, the assessee preferred an appeal before Customs, Excise & Service Tax Appellate 5th Tribunal, which was allowed vide order dated August, 2008. Hence, Department has preferred this appeal before this Court.
(3.) THIS Court while admitting the appeal on 8th April, 2009 framed the following substantial question of law:- "Whether the Hon'ble CESTAT is correct in holding that the provisions of Section 11-D of the Central Excise Act, 1944 are not applicable in the cases, where the assessee are engaged in the encashment of Cenvat credit by clearing the goods on payment of duty from Cenvat credit account, which are otherwise chargeable to NIL rate of duty." ;