Page 91 - ELT_3rd_1st May 2020_Vol 372_Part

2020 ] KESORAM SPUN PIPES AND FOUNDRIES LTD. v. COMMR. OF CENTRAL EXCISE 313

reading of Section 11D makes it clear that what is required is that amounts
collected as duty should not be retained by the manufacturers and should
be deposited with the revenue. This was the view that Division Bench took
in the case of Nu-Wave Shoes. ...”
12. The appellant also refers to the previous circular of November 12,
2001 pertaining to Rule 57CC of the Central Excise Rules, 1944 and a recent circu-
lar of May 16, 2008 covering the decision in Unison Metals Limited and pertaining
to Rule 6 of the CENVAT Credit Rules, 2004. The appellant says that though the
circular of 2008 had not been issued at the time that the adjudicating authority
passed its order in this case about a week earlier, all that the clarificatory circular
of May 16, 2008 has done is to accept the legal position as enunciated in Unison
Metals Limited.
13. The Union opposes the appeal on the ground that the adjudicating
authority did not commit any error, far less any jurisdictional error, since it in-
terpreted the law as it stood at the relevant point of time. The Union submits that
the adjudicating authority noticed the legal position as enunciated in Unison
Metals Limited and interpreted it not to apply to the case of the appellant since the
appellant had obtained a certain amount from the appellant’s buyers on account
of excise duty but had not deposited the amount realised by way of excise duty
to the excise authorities.
14. It is clearly such position which was addressed at paragraph 8 of
the judgment of the Larger Bench of the Tribunal in Unison Metals Limited.
Though such judgment dealt with the 8% duty that was relevant at that point of
time under Rule 57CC of the 1944 Rules, the legal principle enunciated was that
if there were several modes of making the payment and one of them was adopt-
ed, that would do. That appears to have been the ratio in Unison Metals Limited as
accepted by the authorities in the circular of May 16, 2008. That the circular of
May 16, 2008 came after the judgment of the adjudicating authority was deliv-
ered makes no difference since such circular is clarificatory in nature and does
not change the position at all.
15. Since the appellant in the present case adopted the scheme under
Rule 6(3)(c) of the Rules of 2004 to which the first Explanation to the sub-rule was
also attracted, there was an option available to the appellant to either make over
the amount that was realised by the appellant by way of excise duty from the
appellant’s purchasers or to debit the CENVAT credit obtained by the appellant
by the equivalent amount. There is no dispute that the appellant did, in fact, deb-
it the CENVAT credit by the equivalent amount. If the CENVAT credit can be
seen as money in the hands of the assessee in some other form, the debiting of
the CENVAT credit by an equivalent amount, tantamounts to such amount hav-
ing made over to the excise authorities or refunded to the excise authorities or
the like.
16. It is evident that the adjudicating authority did not refer to the first
Explanation to Rule 6(3) of the said Rules of 2004 while passing the relevant or-
der. In such circumstances, the adjudicating authority committed an error of ju-
risdiction in failing to appreciate the extent to which the dictum in Unison Metals
Limited bound the adjudicating authority. The discussion in paragraph 8 of the
judgment pertaining to the then duty of 8 per cent. is the same discussion that is
EXCISE LAW TIMES  1st May 2020  91