2013 (2) TMI 595 - AT - Central Excise

Short payment of Central Excise duty - applicant cleared Superior Kerosene Oil to various Oil Marketing Companies - seeking waiver of pre-deposit of duty, interest and penalty - Held that - On the same issue the Tribunal in the case of Oil and Natural Gas Corporation Ltd vs CCE (2010 (9) TMI 907 - CESTAT, MUMBAI)relying on CCE vs Mazagon Docks Ltd 2005 (7) TMI 105 - SUPREME COURT OF INDIA referred the matter to the Larger Bench. Thus as the issue is before the Larger Bench, the applicant is entitled for stay. The applicants were clearing the goods on payment of duty and the same were reflected in their monthly returns and the invoices which had been specifically mentioned the duty. Therefore, the allegation of suppression with intent to evade payment of duty is not sustainable - Pre-deposit of the dues is therefore waived and recovery thereof stayed for hearing of the appeal.

Summary

Issues:
1. Application for waiver of pre-deposit of duty, interest, and penalty.
2. Allegation of clearing goods with lesser duty payment.
3. Contention regarding fixation of price by the Oil Co-ordinate Committee.
4. Time-barred demand and allegation of suppression.
5. Interpretation of the decision in CCE vs. Mazagon Dock Ltd.
6. Reference to the Larger Bench in the case of ONGC.

Analysis:
The judgment by the Appellate Tribunal CESTAT MUMBAI involved the consideration of various issues. Firstly, the applicant sought waiver of pre-deposit of duty, interest, and penalty amounting to Rs.3,64,29,967. The Show Cause Notice was issued due to alleged clearance of Superior Kerosene Oil with Central Excise duty payment lower than the value recovered by oil companies, leading to demand confirmation and penalty imposition by the adjudicating authority.

Regarding the contention raised by the applicant, it was argued that the price of Superior Kerosene Oil was fixed by the Oil Co-ordinate Committee, resulting in subsidy received by oil marketing companies from the oil pool account. Thus, the amount should not be added to the manufactured goods' value, making the demand unsustainable. Additionally, the applicant claimed that the demand was time-barred and that there was no suppression of facts to evade duty payment since duty payments were reflected in monthly returns and invoices.

The Revenue, however, relied on the decision in CCE vs. Mazagon Dock Ltd to assert that since the applicants did not receive any subsidy, they were liable to pay duty on the full transaction value received by the oil marketing companies. The Tribunal found that the Revenue's reliance on the Supreme Court decision was countered by the Tribunal's decision in favor of the applicants. Moreover, the matter had been referred to the Larger Bench in the ONGC case, aligning with the Supreme Court's decision in CCE vs. Mazagon Dock Ltd.

Consequently, the Tribunal opined that the applicants had a strong case for pre-deposit waiver, as the allegation of suppression was not sustainable prima facie. Therefore, the pre-deposit of dues was waived, and recovery stayed for the appeal hearing. The stay petition was allowed, and both parties were permitted to mention the decision of the Larger Bench in the ONGC case for further proceedings.