2023 (9) TMI 1105 - AT - Customs

Recovery of Countervailing duty (CVD) - excess collection of CVD - HELD THAT - This issue is no more res integra and the same has been settled by this Tribunal in their own case INDIAN OIL CORPORATION LTD. VERSUS COMMR. OF CUS., KANDLA 2008 (4) TMI 93 - CESTAT, AHMEDABAD , wherein this Tribunal has observed We also find merit in the appellant s contention that as per the Administered Price Mechanism Scheme any excess recovery has to be deposited in the oil pool account and any deficiency is made good by oil pool account, and therefore, it cannot be said that there is excess collection of duty. It may not be exactly fit into the scheme of Section 28B of Customs Act, 1962 or Section 11D of the Central Excise Act, 1944 but it has to be accepted that the purpose of legislation of these sections is fulfilled by this provision in the Administered Price Mechanism Scheme. The Tribunal has observed that the price of the petroleum products was fixed under the Administered Price Mechanism (APM) and it has been explained by the appellant that whenever there is excess collection of duty, the same is surrendered to the oil pool account and consideration the same, the proceedings against the appellants were dropped - the demand confirmed against the appellant by way of impugned order, are not sustainable. Petition allowed.

Summary

Issues involved:
The issue involved in this case is whether Countervailing duty (CVD) should be demanded and recovered from the appellant under the provisions of Section 28B of the Customs Act, 1962, for the alleged excess collection of CVD from customers on duty paid imported goods like High Speed Diesel.

Comprehensive Details:

Issue 1: Demand of Countervailing duty (CVD) from the appellant

The appellant, a Public Sector Undertaking registered with the Central Excise authorities for storage and sale of petroleum products, received duty paid imported goods, including High Speed Diesel (HSD) through the pipeline from Haldia. The appellant also received bonded excisable goods and duty paid excisable goods for sale. The excess collection of CVD was alleged on indigenous imported HSD at the rate of Rs.1 per litre, leading to the issuance of show-cause notices. The demand was confirmed against the appellant, which was challenged in the appeal.

Issue 2: Precedent decisions and applicability

The appellant cited precedent decisions by the Tribunal in their own cases, where it was held that excess collection of duty was not sustainable as per the Administered Price Mechanism Scheme. The Tribunal observed that under the APM, any excess recovery had to be deposited in the oil pool account, and any deficiency was made good by the account. The Tribunal also noted that the prices of petroleum products were fixed under the APM, and any excess duty collection was surrendered to the oil pool account. Consequently, the Tribunal set aside the demand confirmed against the appellant based on these precedents.

Conclusion:

The Tribunal, considering the settled issue in the appellant's own cases and the mechanism under the Administered Price Mechanism Scheme, held that the demand of CVD against the appellant was not sustainable. Therefore, the impugned orders were set aside, and the appeals were allowed with consequential relief, if any.