2018 (12) TMI 1534 - HC - Central Excise

Price escalation clause - liability of excise duty on upward revision of rates - Section 11 D of Central Excise Act - petroleum products - sale of High Speed Diesel and Motor Spirit - Held that - Whenever, there is upward revision of rates, the amount is collected from the customers, by the Depots. The additional amount recovered, has to be considered, as extra excise duty, which is liable to be paid under Section 11 D of the Act - The appellant cannot be permitted to pay duty, on the rates, prevailing on the date of stock transfer, ignoring the upward revision of rates, which is the price, at which the products to be sold, to the customer. Arguments of the appellant that they have no control over the Depots, is no answer to avoid the demand, because, it is the duty of the appellant to maintain the records of the amounts received from the Depots, from the sale of High Speed Diesel and Motor Spirit - Amount that are received from the Depots would include the excise duty, collected by the Depots, at the revised rate. The calculation are accounted, against the appellant. Therefore, the appellant alone is liable to pay the differential excise duty, recovered, in terms of Section 11 D of the Central Excise Act. Appellant, is the consignor of the goods, and the goods are removed from the terminal of the appellant to the depots only on stock transfer. They being the consignors, are responsible, for accounting to the authorities, for payment of excise duty. Admittedly, there is no sale between the terminal and depots. It is therefore, it is the responsibility of the consignor, to produce the sale record on stock transfer of goods, and pay the excess amount of excise duty collected due to upward revision of rates. Demand upheld - appeal dismissed - decided against appellant.

Issues Involved:
1. Jurisdiction and legality of the Tribunal's order.
2. Applicability of Section 11D of the Central Excise Act, 1944.
3. Impact of subsequent price revisions at depots on duty liability.
4. Judicial impropriety by not following binding precedents.
5. Demand of interest under Section 11DD of the Central Excise Act, 1944.

Detailed Analysis:

1. Jurisdiction and Legality of the Tribunal's Order:
The appellant contended that the Tribunal's order was arbitrary, illegal, and without jurisdiction, arguing that the show cause notice itself was issued without jurisdiction. The Tribunal, however, confirmed the lower authorities' orders, rejecting the appellant's claims. The High Court upheld the Tribunal's decision, finding no merit in the appellant's arguments regarding jurisdiction.

2. Applicability of Section 11D of the Central Excise Act, 1944:
Section 11D mandates that any person liable to pay duty under the Act, who collects any amount in excess of the duty assessed, must pay the excess amount to the credit of the Central Government. The appellant argued that the depots were independent and not under their control, and therefore, they should not be liable for the differential duty. However, the Tribunal and the High Court held that the appellant, as the consignor, was responsible for the correct adoption of the provisions of the law, including Section 11D, and must pay the differential duty collected due to upward revision of rates.

3. Impact of Subsequent Price Revisions at Depots on Duty Liability:
The appellant contended that duty should be based on the price prevalent at the time of clearance from the warehouse, as per Rule 7 of the Central Excise Valuation Rules, 2000. The Tribunal and the High Court rejected this argument, stating that the appellant cannot ignore the upward revision of rates at the time of sale to the customer. The additional amount recovered due to price revisions must be considered as extra excise duty, payable under Section 11D.

4. Judicial Impropriety by Not Following Binding Precedents:
The appellant argued that the Tribunal's order suffered from judicial impropriety by not following the binding decision of the High Court in the case of CCEx. Coimbatore Vs. Hindustan Petroleum Corpn. Ltd reported in 2015 (322) ELT 618. The High Court, however, did not find this argument sufficient to overturn the Tribunal's decision, indicating that the facts and circumstances of the present case warranted a different conclusion.

5. Demand of Interest under Section 11DD of the Central Excise Act, 1944:
The appellant challenged the demand of interest under Section 11DD, arguing that the proposal to demand interest was not invoked in the show cause notice and that Section 11DD was introduced only from 14.05.2003. The High Court upheld the Tribunal's decision, confirming the demand of interest, and found no merit in the appellant's argument regarding the applicability of Section 11DD.

Conclusion:
The High Court dismissed the Civil Miscellaneous Appeal, affirming the orders of the lower authorities and the Tribunal. The Court held that the appellant was liable to pay the differential excise duty collected due to upward revision of rates under Section 11D of the Central Excise Act, 1944, and confirmed the demand of interest under Section 11DD. The Court found no jurisdictional error or judicial impropriety in the Tribunal's order and upheld the concurrent findings of fact by the lower forums.

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