SAROJ TEXTILES LTD. Vs. CCE

JUDGEMENT

(1.) This appeal has been directed against the impugned Order -in -Original dated 17.4.2003 vide which the Commissioner as adjudicating authority, has confirmed the duty of Rs. 1,16,83,256 under Section 11 -D of the Act on the appellants on the ground that they had recovered this amount in excess of the duty from the customers and also confirmed duty of Rs. 59,910 in respect of the processed fabrics of cotton shirting and duty of Rs. 39,093 regarding 12 bales of suitings, on them for having cleared these goods without payment of duty.

(2.) The learned counsel has contested the validity of the impugned order confirming the demand under Section 11 -D of the Act by contending that the provisions of this Section during the relevant period i.e. 16.12.1998 to 28.2.2001 were not attracted to the appellants as they were paying the duty in terms of Section 3 -A of the Act on the basis of the production capacity/number of chambers of the stenter and as such had nothing to do with the quantity of the goods manufactured and cleared by them during that period. To substantiate his contention, the learned counsel placed reliance on the ratio of the law laid down in the case of Viral Ispai Ltd. v. CCE, Mumbai, 2003 (89) ECC 218 (T), wherein it has been ruled that "The Compounded Levy Scheme was introduced from 1.8.1997 and it required payment of duty by a manufacturer entirely unconnected with the quantity of goods that it manufactured, and based solely on the capacity to manufacture." The learned counsel has also referred to the law laid down in the case of Bripanil Industries Ltd. v. CCE, Bangalore, 2002 (83) ECC 46 (T) : 2002 (144) ELT 391 (T), wherein it has been observed that the provisions of Section 11 -D of the Act are not applicable to additional excise duties. Another case relied upon by the learned counsel is of Poddar Industrial Corporation v. CCE, Patna, 2003 (158) ELT 473 (T), Wherein in an identical case the provisions of Section 11 -D were sought to be invoked against the assessee by the Department, but the same was not allowed by the Tribunal.

(3.) On the other hand, the learned SDR, has contended that since the duty element was separately shown in the invoices, it must be presumed that the same has been independently recovered by the appellants from the customers over the above the duty already included by them in the contracted sale price, therefore, the demand has been rightly confirmed against them under Section 11 -D of the Act.