2018 (9) TMI 1002 - AT - Customs

Recovery of Customs Duty collected in excess - Section 28B of the Customs Act, 1962 - Administered Price Mechanism - Unjust enrichment - Held that - The issue is decided in the case of INDIAN OIL CORPORATION LTD. VERSUS COMMR. OF CUS., KANDLA 2008 (4) TMI 93 - CESTAT, AHMEDABAD , where it was held that there is no excess collection of duty from the customers and therefore, demand is not sustainable - appeal allowed - decided in favor of appellant.

Summary

Issues: Challenge to order of Commissioner of Customs under Section 28B of the Customs Act, 1962 regarding payment of duty on collected amounts.

Analysis:
1. Challenge to Commissioner's Order: The appellant challenged the Commissioner's order holding them liable to pay duty under Section 28B of the Customs Act, 1962. The appellant, engaged in refining and marketing petroleum products, stored both duty-paid and non-duty paid stocks. The issue arose when a show-cause notice alleged excess collection of duty, which should have been deposited into the Consumer Welfare Fund. The appellant contended that excess duty collected was surrendered to the oil pool account, citing various decisions in their favor.

2. Precedents and Legal Arguments: The appellant relied on several decisions, including those involving Indian Oil Corporation Ltd. and Hindustan Petroleum Corporation Ltd., where similar issues were decided in favor of the appellants. The appellant argued that excess duty collected was adjusted in the oil pool account as per the Administered Price Mechanism Scheme, fulfilling the legislative purpose, despite not aligning precisely with Section 28B of the Customs Act, 1962 or Section 11D of the Central Excise Act, 1944.

3. Judicial Decisions: The Tribunal referred to its own decisions and those of other benches, where it was held that excess duty collection was not sustainable if adjustments were made in the oil pool account. The Tribunal emphasized that the finality of decisions between the appellants and the department, as per the Apex Court judgment, prevented the department from re-raising the dispute. The Ahmedabad Bench also supported this view, stating that any excess recovery under the Administered Price Mechanism Scheme was to be deposited in the oil pool account.

4. Final Decision: After considering the arguments and precedents, the Tribunal set aside the Commissioner's order and the demand raised, in line with the principle of stare decisis. The appeal was allowed with consequential benefits, if any. The judgment was pronounced in open court on 12/09/2018.