2010 (8) TMI 551 - AT - Central Excise

waiver of pre-deposit - regarding the Excise duty on the terminalling charges that are collected by the assessee from the other Oil Manufacturing Companies on the LPG received by them from M/s. MRPL - It is seen that the excise duty discharged by the assessee on the LPG cleared from such facility is on the price determined by Oil Coordination Committee - In this case, it is undisputed that LPG cleared from LPG storage facilities are dispatched to bottling plants for bottling. We find that the appellant has made out a prima facie case for waiver of pre-deposit of the amounts involved - Accordingly application for waiver of pre-deposit is allowed

Summary

Issues:
- Excise duty on terminalling charges collected by the assessee from other Oil Manufacturing Companies on LPG received from M/s. MRPL.

Analysis:
The case revolved around the Excise duty on terminalling charges collected by the assessee from other Oil Manufacturing Companies on LPG received from M/s. MRPL. The appellant contended that they discharge the Excise Duty on the Ex-storage Sale Price of the LPG received for storage under bond from various sources, including imported LPG and LPG manufactured by MRPL but purchased by the appellant. They argued that the price of LPG cleared from the Ex-Storage Point is fixed by the Oil Coordination Committee, which is considered an Administered Price Mechanism (APM) for domestic usage. The appellant highlighted that they pay Central Excise Duty when LPG is cleared for industrial usage, as per applicable laws. On the other hand, the SDR argued that the terminalling charges should be added to the valuation of purchased LPG as additional consideration received by the assessee, applying Section 4 for purchase and sale transactions.

Upon considering the submissions from both sides and reviewing the records, the Tribunal found that the ex-storage price set by the Oil Coordination Committee for LPG cleared for domestic use is covered by Circulars issued by the Oil Marketing Committee regarding the sale price. The Tribunal noted that the excise duty paid by the assessee on LPG cleared from the storage facility is based on the price determined by the Oil Coordination Committee. Referring to the CBEC's "Excise Manual of Supplementary Instructions," the Tribunal emphasized that the ex-storage price fixed by the Committee could be used for calculating excise duty liability and should be considered as an assessable value, regardless of whether the petroleum products are sold at refineries or through marketing companies. It was established that the LPG cleared from storage facilities is sent to bottling plants for further processing. Consequently, the Tribunal concluded that the appellant had presented a prima facie case for waiving the pre-deposit amounts. As a result, the application for the waiver of pre-deposit was granted, and recovery of the amounts was stayed pending the appeal's disposal.