2018 (12) TMI 1026 - AT - Central Excise

Valuation - inclusion of notional amount of freight for removal of goods from Haldia Refinery to Blending Plant at Paharpur - revenue neutrality - Held that - The duty paid at the time clearance of the LOBs was availed by the appellant as Modvat Credit for payment of duty at the time of clearance of the manufactured lubricating oil. Any differential duty paid on the LOBs will be immediately available as Modvat Credit and hence this is clearly leading to a revenue neutral situation. The demand raised in the impugned order is not maintainable - Appeal allowed - decided in favor of appellant.

Summary

Issues:
Dispute over differential duty on Lubricating Base Oil (LOBs) received without payment of duty for manufacturing lubricating oils, Duty payment based on prices fixed by Indian Oil Marketing Division, Addition of notional freight for LOBs transportation from Haldia to Blending Plant, Appellant's argument of revenue neutrality and availability of Modvat Credit, Allegation of misstatement or fraud in Show Cause Notices, Challenge against Order-in-Original.

Analysis:
The appeal before the Appellate Tribunal CESTAT Kolkata involved a dispute concerning the payment of duty on Lubricating Base Oil (LOBs) received by the appellant for manufacturing lubricating oils. The appellant received LOBs without payment of duty under cover of AR-3A from their refinery at Haldia. The Revenue contended that duty should be paid on LOBs by adding a notional amount of freight for their transportation from Haldia to the Blending Plant at Paharpur. The Commissioner upheld the demand for differential duty raised by seven Show Cause Notices, leading to the present appeal (Para 3-4).

The appellant argued that duty payment on LOBs was based on prices fixed by the Indian Oil Marketing Division in Kolkata. They contended that no addition to these prices was permitted under Section 4 of the Central Excise Act, 1944. The appellant also highlighted that any differential duty paid would be available as Modvat Credit, resulting in a revenue-neutral situation. They relied on a Tribunal decision in the case of Anglo French Textiles, which was upheld by the Supreme Court (Para 5).

The Revenue reiterated the findings of the adjudicating authority, emphasizing the appellant's failure to provide evidence supporting their contention regarding the freight cost included in the prices Ex-Kolkata. After considering submissions from both sides, the Tribunal analyzed the dispute regarding the valuation of LOBs for duty payment at the time of clearance. The Tribunal noted the appellant's argument of revenue neutrality and the availability of Modvat Credit, leading to a revenue-neutral situation. Citing a similar case precedent and the decision in Anglo French Textiles, the Tribunal concluded that the demand raised by the Revenue was not maintainable. Consequently, the impugned order was set aside, and the appeal was allowed (Para 6-11).