ORDER
S.S. Sekhon, Member (T)
1. After hearing both sides, and consideration on a close view of the Show Cause Notice, it is found that the demand under Section 11D of the Central Excise Act, to the rune of Rs. 6,75,075.42 has been arrived at on the basis of an assumption that besides the invoices on which duties were incorrectly shown and recovered amounting to Rs. 1,57,483.00 in the other invoices also there was a similar recovery. The authorities have taken for granted that in all the cases, the appellants had shown price inclusive of Central Excise duty and therefore the calculations made by applying Rule 8 of Central Excise duty has been worked out without giving the benefit of the charge and application of nil rate of duty during the exemption limits which the appellants had been claiming. The issue of this demand is therefore to be reworked out to the remand now being proposed. The copies of invoices have been shown, they clearly indicate that the total price of the goods and sales tax chargeable on the same and they do not show the charge of any excise duty thereon. In fact they are showing excise duty column as ‘nil’. When the concessional rate of duty is ‘nil’ assuming that the appellants have recovered the tariff rate excise duty in the prices shown on the invoices is an assumption, that is required to be proved. Merely because on few invoices total duty of Rs. 1,57,483/- has been recovered, due to a mistake committed by an employee of the assessee, it cannot be assumed that all other invoices, the same practice has been followed. In any case, the case has been made out on the basis of the contracts entered into with a public sector undertaking and approved by the Director General of Supplies and Disposal wherein it was found that the assessee had been quoting full rate of Central Excise duty in respect of all the excisable goods while the invoices issued and available were showing ‘nil rate of duty and there was a suspicion about collecting an amount representing Central Excise duty from the buyers which moved the investigator to pursue the line of investigation and issued the present Show Cause Notice. The concerned buyers can be contacted, to find out and establish, as to what amounts if any, they have been charged as Central Excise duty and thereafter the matter redetermined. Since the matter is being remitted for redetermination, the issues raised by the other appellants about the penalties imposed on them under Rule 209A of the Central Excise Rules, 1944 would be in excess of Rule 209A can also be looked into. These appeals are therefore allowed and matter remanded to the original authority for rehearing the appellants and redetermining the duties, if any, and consequential penalties to be imposed on the other two appellants under Rule 209A of the Central Excise Rules, 1944.
2. Appeals allowed by remand.