The Allahabad High Court Bench comprising Hon’ble Mr. Justice Sunil Ambwani and Hon’ble Mr. Justice Aditya Nath Mittal on 9-8-2012 admitted the Central Excise Appeal No. 240 of 2012 filed by Commissioner of Central Excise against the CESTAT Final Order No. 493/2011-EX(PB), dated 13-5-2011 as reported in (Tri. - Del.) (Kisan Sahkari Chini Mills Ltd. v. Commissioner). While admitting the appeal, the High Court passed the following order :
“Shri R.C. Shukla, learned counsel appearing for the appellant states that the Tribunal has committed gross error of law in misinterpreting the provisions of Section 11C of the Central Excise Act, 1944, which provides for depositing any amount in excess of the duty assessed or determined or paid on excisable goods. He states that under the incentive scheme the excise duty on the entire amount collected by the sugar mill was to be deposited by the mill. The mill collected @ Rs. 85/- per quintal on 84890 quintals, whereas it deposited only Rs. 52/- per quintal.
The appeal is admitted on substantial questions of law, as follows :
“1. Whether the incentives granted to the appellant permit them to collect excise duty, more than they had themselves paid, from their customers, if they collected by way of excise more than what they had paid, they by virtue of Section 11D of Central Excise Act, 1944 were they bound to deposit that amount with the Govt.”?
2. Whether the party should not be vigilant or even be careful in their act and nature of business as per the provisions of the law.”
Since the hearing of the appeal will not require determination of any question of fact, the filing of paper book is dispensed with.
List for hearing after a month.”
The Appellate Tribunal in its impugned order had held that Incentive Scheme dated 4-11-1987 of Government of India was a well thought out scheme and took into consideration various aspects regarding the development of sugar industry. In terms of said scheme assessee was allowed to retain certain amount over and above duty paid in terms of Notification No. 130/83-C.E. Since assessee had not collected any amount in contravention of Scheme, amount cannot be recovered from appellants under Section 11D of Central Excise Act, 1944.
[Commissioner v. Kisan Sahkari Chini Mills Ltd. - 2016 (342) E.L.T. A182 (All.)]
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