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312 EXCISE LAW TIMES [ Vol. 372

collected from the purchasers of the appellant’s exempted goods, the appellant
debited the equivalent amount from the CENVAT credit obtained by the appel-
lant. There is no dispute that the debit of the CENVAT credit matched the
amount recovered by the assessee on account of excise duty from its vendors.
However, the adjudicating authority found that such a procedure could not have
been adopted by the assessee as the assessee was duty-bound to make over the
money component realised from its vendors to the excise authorities.
10. The appellant refers to the order-in-original dated May 7, 2008 and
places the following paragraphs therefrom :
“I have gone through some of the copies of the Central Excise Invoices and
the corresponding Commercial Invoices, for the relevant period. I find that
in the Central Excise invoice, entries against the Central Excise Duty
amount, is NIL, whereas in the corresponding commercial invoice, specific
amount against the Central Excise Duty @ 10% has been charged, where-
from it is crystal clear that the assessee has realized Central Excise Duty @
10% from its buyers against the clearance of exempted excisable goods, in
question and they did not disclose the issue before the Central Excise De-
partment as well. They at the same time, also retained such collection of
Central Excise duty with them as they did not deposit the same to the credit
of the Central Government.
I find that for the manufacture of both dutiable and exempted goods as-
sessee used common inputs and availed Cenvat Credit on the total inputs
before manufacturing both the products. Hence in terms of the Cenvat
Credit Rules, 2002, they were required debit @ 10% the already, availed
Cenvat credit for the input utilized for the manufacture of exempted goods.
Hence, the ratio of the Tribunal’s decision since the 8% amount remain already
paid to the revenue, and no amount is retained by the assessee, as cited by the as-
sessee to defend themselves, in the case of Unison Metals Ltd. v. Commissioner of
Central Excise, Ahmedabad-I., 2006 (2004) E.L.T. 323 TLB, is not at all applicable
in the instant case, as because no amount was paid to the revenue and they only
neutralized the already availed cenvat credit on the inputs, used for the manufac-
ture of exempted goods.
In the instant case, I find since the assessee did not pay the amount to the Gov-
ernment so collected from the buyers of the exempted goods, representing duty of
excise, they have to pay this amount to the Government in terms of Section 11D of
the Central Excise Act, 1944…”. (Emphasis in original)
11. The appellant refers to an order of a Larger Bench of the Customs,
Excise and Service Tax Appellate Tribunal reported at 2006 (204) E.L.T. 323
(Unison Metals Limited v. CCE, Ahmedabad). Paragraph 8 of the report, in the con-
text of the circular that was then applicable, is of relevance :
“8. In the present case, it is not in dispute that the assessees had paid 8%
of the value of the goods in terms of Rule 57CC at the time of removal of
the goods from the factory. The amounts so paid are the amounts recovered
by them from their buyers. Thus, in the present cases, no amounts collected
from the buyers remain unpaid to the revenue, irrespective of whether
those amounts were represented in the sales documents as duty or not. In
fact, the invoices referred to the payment in different terms such as “8% re-
versal of assessable value”, “8% value”, “8% duty etc.” As the amounts re-
covered from the buyers are not retained by the assessees, the question of
deposit cannot arise, whether under Section 11D or any other provision. A
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