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2018-VIL-684-CESTAT-DEL-CE

CENTRAL EXCISE CESTAT Cases

Central Excise - appellant collected Central Excise duty from its buyers in excess of what has been actually paid on the same goods at the time of removal of excisable goods at the factory gate - notice under Section 11D of the CEA, 1944 for recovery of excess duty – appellant contention that section 11D are not applicable as clearance was made from depot – place of removal – refund of duty by issue of credit notes to buyer - HELD – the depot of manufacturer-assessee is only an extension of the manufacturer and therefore, the provisions of section 11D are very much applicable on the extended arm of the manufacturer-assessee, i.e. the depot of such assessee - the original manufacturer had an option to clear his dutiable goods from their depot on payment of duty, however, same has been cleared from the factory gate and just because the depot has taken a separate registration as a first stage dealer does not mean that they are not part and parcel of manufacturer-assessee - provisions of section 11D even prior to 10.5.2008 are applicable in case of appellant and they are legally bound to deposit back the excess amount collected by them from their customers in the name of Central Excise duty – the credit note makes it clear that a credit of cenvat difference has been given back by them for a period April to June, 2009 - it is not a refund of excess amount collected by them rather for lack of evidence the possibility cannot be ruled out as the buyer may have taken the credit of these cenvat difference in their books of accounts and might have used them for further passing the cenvat credit to their customers. Seen from this angle, it is not a proper return of the excess collected amount which was in the name of Central Excise duty. Thus, the excess amount collected in the name of Central Excise duty by the appellant-assessee does not stand returned back to their customers and therefore, same need to be deposited with the Central Government – under section 11D no period of limitation has been prescribed, therefore, invocation of extended period is sustained – the impugned order is upheld and assessee appeal is dismissed

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