1998 (9) TMI 314 - AT - Central Excise

Summary

Issues:
1. Waiver of pre-deposit of central excise duty and penalty for three appeals.
2. Demand of duty on supplies of Liquefied Petroleum Gas (LPG).
3. Application of prices fixed by the Oil Coordinating Committee (OCC).
4. Subsidy received by the applicant from OCC.
5. Plea of limitation.
6. Assessment of the case in relation to previous judgments.

Analysis:
1. The applicant sought waiver of pre-deposit of central excise duty and penalty for three appeals against a combined Order-in-Original. The demand was for Rs. 9,39,57,522.00, and the penalty was of an equivalent amount. Three stay applications were filed due to three show cause notices issued to the applicant.

2. The demand of duty was based on supplies of LPG made by the applicant to BPCL. The applicant paid duty according to prices fixed by the Oil Pricing Committee. The contention was that the demand was calculated using the price for LPG sold in bulk, while the applicant paid based on prices applicable for different modes of subsequent distribution by BPCL.

3. The applicant argued that the prices fixed by OCC should not include the subsidy received by them. It was contended that these administered prices were not applicable to the applicant, as they sell LPG to Oil Companies for marketing, not directly to consumers. Reference was made to a Supreme Court judgment to support this argument.

4. The respondent justified the demand, stating that the price applicable to the form in which LPG was cleared should be adopted. The Commissioner applied the administered price for LPG cleared in bulk, which was deemed correct. The respondent argued that the OCC-fixed prices applied not only to Oil Companies but also to other entities like the applicant.

5. The respondent contended that the plea of limitation only applied to the first notice, as the subsequent notices were issued in time. It was argued that there was suppression due to non-disclosure of the mode of clearance of LPG, making limitation inapplicable.

6. The Tribunal considered previous judgments and the specifics of the case. The applicant had sold LPG in bulk at a certain price per tonne, receiving a subsidy from OCC. The duty was paid based on prices for different modes of supply, but the duty for bulk removals was not paid at the applicable rate. The Tribunal directed the applicant to make a pre-deposit and waived the balance amount for the hearing of the appeals, with recovery stayed during the appeal's pendency.