2013 (12) TMI 880 - HC - Central Excise

Maintainability of demand u/s 11D of Excise Act Payment collected on increased price but accordingly duty not paid - Collection of Excise duty from the customers, on account of fluctuation in rates of the petroleum products Whether the assessee is a dealer or manufacturer Held that - Following M/s BPCL Vs. CCE, Meerut 2011 (9) TMI 434 - SUPREME COURT OF INDIA - There is nothing on record to show that the respondent is a manufacturer, on the contrary, from the initiation of proceedings at the time of issuance of notice till conclusion, they are treated as dealer - once the tribunal has decided the matter based on the principles settled, there was no reason to interfere in the matter Decided against Appellant.

Summary

Issues:
Challenge to order of Customs Excise & Service Tax Appellate Tribunal regarding excise duty collection and deposit by a public sector company.

Analysis:
The appeal challenges an order passed by the Customs Excise & Service Tax Appellate Tribunal regarding the collection of excess amounts by a public sector company in the name of excise duty. The company, engaged in manufacturing and marketing petroleum products, was alleged to have collected extra amounts from customers as excise duty but failed to deposit the same with the department. The issue revolved around the maintainability of the demand raised by the revenue under Section 11D of the Excise Act. The tribunal considered whether the demand was valid, given that the company was clearing goods at revised prices due to changes in the budget affecting petroleum product prices. The tribunal found the demand not tenable, leading to the revenue's appeal.

The main contention was whether the company, as a manufacturer, was liable to pay the difference in duty. The company argued that previous judgments related to duty payment by dealers and not manufacturers. However, the court found this argument unsustainable as there was no indication that the company was a manufacturer in the show cause notice or proceedings. The company was registered as a dealer with the Central Excise Department, engaged in distributing petroleum products received from manufacturers. Both the appellate authority and tribunal treated the company as a dealer, not a manufacturer, based on the facts presented.

The court dismissed the appeal without notice to the respondents, emphasizing that the company's status as a dealer, not a manufacturer, was established throughout the proceedings. The judgments related to duty payment by dealers were deemed applicable, and there was no reason to interfere with the tribunal's decision based on settled principles. The appeal was found to lack merit, and the demand for duty from dealers had been addressed in previous Supreme Court judgments, concluding that the substantial question raised by the revenue did not warrant consideration.