ORDER
S.L. Peeran, Member (J)
1. For the purpose of hearing this appeal appellant is required to pre-deposit duty amount of Rs. 5,13,118/-which has been levied under Section 11D of the Central Excise Act. The findings of the Commissioner is recorded in Para 12 of the Order which is as follows :-
“12. In respect of the second appellant, a sum of Rs. 5,13/1187- has been demanded under Section 11D of the Central Excise Act, 1944. This is in relation to the utilisation of Modvat credit by the appellant. When the Compounded Levy Scheme came into force, the appellant had a Modvat balance of Rs. 10.80 lakhs in their RG 23A account as on 31-7-1997. In terms of the provisions of law, such Modvat balance automatically lapsed. The appellants after the introduction of the Compounded Levy Scheme challenged the levy under Section 3A and the Hon’ble Kerala High Court granted them stay. Thus during the period 14-1-1998 to 4-2-1998, they discharged duty liability on ingots manufactured and sold by them, in terms of Section 3 read with Section 4 of the Central Excise Act. In discharging the duty liability during this period, the appellants utilised the lapsed Modvat credit. On going through the sale invoices issued by the appellants during this period, it is seen that the appellants have collected duty far in excess of Rs. 750 per MT. On an average, they have in their invoices collected duty at the rate of Rs. 1435 per MT from their customers. Since on dismissal of the writ petition, the appellants paid the duty at the rate of Rs. 750 per MT to the Department under the Compounded Levy Scheme, therefore, the duty collected by the appellants, which for the above specified period on an average is Rs. 1435 per MT, is in excess of what has been remitted by the appellants to the Department. Therefore, this excess amount of duty collected by the appellants from their customers under the invoices has been rightly demanded by the Department under Section 11D of the Central Excise Act. I, therefore, see no infirmity in the order passed by the lower authority in demanding the sum of Rs. 5,18,118/-.”
2. We have heard ld. Advocate Shri G. Natarajan, for the appellants and ld. DR, Shri B.R, Jagadish for the Revenue.
3. On a careful consideration of the submissions, we are of the considered opinion that the finding recorded as above by the Commissioner (Appeals) does not suffer from infirmity. Prima facie, the order is correct. The appellants cannot adjust the payments due under Section 11D from the lapsed Modvat balance. There is no fource in the grounds taken up by the appellant on this aspect of the matter. They are required to pre-deposit the entire amount within three months from today. It is made clear that if the appellants do not deposit the amount within the said time appeal shall be liable for disposal under Section 35F of the Act. Call on to report compliance on 27th August 2004.
