2017 (11) TMI 600 - AT - Central Excise

Valuation - SKO(PDS) - whether duty payable on SKO(PDS) should be on the retail sale price fixed by the government/OCC under administered price mechanism or on the value recovered from oil marketing companies during the disputed period? - extended period of limitation - Held that - issue involved in the present case is identical to the issue which was referred to Larger bench as per the Larger bench judgment in case of ONGC 2015 (11) TMI 1038 - CESTAT MUMBAI (LB) , the assesse has to discharge the excise duty on the transaction value which is collected from oil marketing company by issuing commercial invoice, therefore in view of the said decision this issue is no longer res integra. Extended period of limitation - Held that - issue involved was of interpretation of law and there are contrary decision on the issue - also, in case of government undertaking unit malafide intentions cannot be attributed to the assessee - extended period not invokable. Appeal allowed - decided in favor of appellant.

Summary

Issues involved: Determination of duty payable on SKO(PDS) based on retail sale price or value recovered from oil marketing companies during the disputed period; whether the demand is barred by limitation.

Analysis:

Issue 1: Duty payable on SKO(PDS) - Retail sale price vs. value recovered from oil marketing companies
The case involved the question of whether duty payable on SKO(PDS) should be based on the retail sale price fixed by the government/OCC under administered price mechanism or on the value recovered from oil marketing companies during the disputed period. The appellant, M/s. HPCL Vashi, was receiving SKO(PDS) from their Mumbai refinery under bond, and their sale price to other than OMCs was higher than the ultimate sale price of OMCs to their end customers. The show cause notice proposed to adopt the actual sale price of SKO(PDS) to OMC as the assessable value for duty payment. The Commissioner held that duty was payable on the actual sale price of HPCL to other OMCs. The Tribunal found that the issue was identical to a larger bench decision in the case of ONGC, where it was held that excise duty must be discharged on the transaction value collected from oil marketing companies, making the issue no longer res integra. The Tribunal also considered the arguments made by both sides regarding the duty payable on SKO(PDS) and upheld the decision that duty should be based on the transaction value.

Issue 2: Limitation on the demand
Regarding the issue of limitation on the demand, the Tribunal analyzed the interpretation of law and previous decisions. It was noted that there were contrary decisions on the issue, leading to a reference to the larger bench, which resolved the dispute. The Tribunal cited precedents to establish that once a matter is referred to the larger bench, the extended period for demand is inapplicable. The Tribunal also considered the nature of the appellant as a public sector undertaking of the government of India, highlighting that malafide intentions could not be attributed to the appellant. Various correspondences between government ministries and circulars issued by the board were reviewed to determine whether the demand for the extended period was valid. Ultimately, the Tribunal found that the demand was not sustainable on limitation grounds, setting aside the impugned order and allowing the appeal.

In conclusion, the Tribunal's judgment addressed the issues of duty payable on SKO(PDS) and the limitation on the demand, providing a detailed analysis based on legal interpretations, precedents, and factual considerations. The decision clarified the applicable principles and upheld the appeal based on the limitation aspect while affirming the duty payable based on the transaction value collected from oil marketing companies.