2014 (4) TMI 651 - AT - Central Excise

Duty demand - Penalty - quantity shown in the Out-Turn Statement(OTS) on the basis of which the duty has been paid is less than the quantity as per the invoices - Held that - The differential duty demand had arisen because the investigating officer and the Department did not take into account the quantity of duty paid petroleum products received in the tanks - When the matter came up last time before this Tribunal, we had required the Department to do a sample study and get a report. The report shows that the statements prepared by the appellants are acceptable. During the course of hearing, we verified one statement relating to furnace oil for the quarter of April to June 1994 and after going through the report, we find that the appellants have maintained the accounts and the statement clearly shows that the quantity received in the tank as per OTS has suffered duty. Since the entire quantity received in the tank as per OTS which is non-duty paid petroleum product has suffered duty, we find that the submission of the appellant that the Department has ignored the quantity of duty paid petroleum product receipts have not been taken into account for calculation of differential duty is correct - Decided in favour of assessee.

Summary

Issues:
Consideration of waiver of predeposit and stay against recovery in a case involving multiple rounds of litigation.

Analysis:
The matter involved in this judgment was the consideration of waiver of predeposit and stay against recovery. The case had gone through three rounds of litigation. The appellant, engaged in refining and marketing petroleum products, faced disputes regarding valuation and clearance of non-duty paid/duty paid stock from common bonded tanks. The disputes also included issues related to trading of petroleum products without discharging into tanks, known as 'bridging' in the oil marketing industry.

In the third round of litigation, the demand was confirmed based on three grounds: a) discrepancy in the quantity shown in the Out-Turn Statement (OTS) and invoices, b) alleged failure to pay duty on the full consideration received from buyers, and c) inadmissible deductions claimed by the appellant.

Regarding the first issue, the appellant argued that they had paid duty on the entire quantity of non-duty paid petroleum products as per OTS, but the investigating officer and the Department did not consider the quantity of duty paid petroleum products received in the tanks. The Tribunal found the appellant's submissions valid after verifying the statements and reports, concluding that the Department had ignored the duty paid petroleum product receipts in the calculation of differential duty.

On the issue of additional consideration, the appellant's submissions were accepted. The Commissioner's disallowance of deductions on account of dealers' commission was deemed erroneous. The appellant demonstrated that they had paid duty on the entire assessable value without claiming any deduction for dealer's commission.

Regarding siding and shunting charges, the Tribunal held that they were not deductible. However, even after considering eligible deductions, the value adopted was found to be higher than the ex-storage price fixed by the Ministry. The Tribunal referred to previous appellate orders and Tribunal decisions supporting the appellant's position.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal with consequential relief, if any, to the appellant. The judgment highlighted the importance of detailed submissions, evidence verification, and adherence to legal provisions in resolving complex issues in excise duty disputes.