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TMI Blog2009 (3) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 28B of the Customs Act, 1962. 2. Heard both sides. Shri M.H. Patil, learned advocate on behalf of the appellant submitted that they had not at all collected excess duty from the customers. He drew our attention to the plea which was also raised before original adjudicating authority that in the invoices they had shown the duty element under the heading Customs Duty/Excise Duty. He submitted that what was indicated as Customs duty is the total of all types of Customs duties and not merely CVD. He also cited several decisions of the Tribunal and Commissioner (Appeals) as listed below and contended that in all these cases, the relief was given to the parties on the ground that what was collected was Customs duty and not the CVD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rging CVD to their customers. He had also stated that for charging CVD, the CVD paid at the time of ex-bond was calculated on the basis of assessable value of the imported Naptha whereas at the time of sale of Naptha to their customers, the CVD was calculated on the basis of assessable value of indigenous Naptha being sold by them at that time, which indicated that the actual value of Naptha imported was not taken into consideration for calculation of CVD while dealing with the customers, but the price of indigenous Naptha prevalent at that time was taken into consideration. He submits that the appellant did not co-relate actual CVD paid or Customs duty paid at the time of ex-bond clearance, unlike the terminal of IOCL at Hazira, who are ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies and therefore the issue is no more res integra. When it was pointed out to him that the decisions of the Tribunal rendered in respect of Diesel/LPG/SKO which were subjected to APM of Govt. of India, cannot be applied to Naptha which was not under APM, he argued that in all these decisions, the fact that appellant had shown Customs duty in the invoices was taken into account and it was also accepted that such Customs duty includes both the Basic Customs Duty as well as CVD. Before we proceed further, it is necessary to consider this contention. Tribunal in IOCL case reported in 2007 (210) E.L.T. 543, was dealing with the goods which were subjected to APM. Tribunal also took note of the explanation given by the appellant that whereve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Govt. itself and therefore the provisions of Section 28B of Customs Act are not applicable. The Commissioner Vaizag in his order followed the logic of CC Chennai in OIO No. 847/2003, dt. 30-7-03 and cited the above observations of the Commissioner Chennai for coming to the conclusion that the demand has to be dropped. Therefore, reliance of the appellant on both these cases does not help them since in both these cases, the demands were dropped on the ground that excess duty collected has to be credited to the Oil Pool Account which is nothing but the Government. OIA No. SDK (915 624/98), dt. 14-7-98 simply remanded the issue. The OIO dt. 29-3-04 relies upon the decision of the Tribunal in case of HPCL to come to the conclusion that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collected was only the total Customs Duty and not CVD alone. However, the fact remains that amount of Customs duty collected by the appellant has nothing to do with what was actually paid because procedure adopted was to take the assessable value of the indigenous Naptha and calculate the duty irrespective of the fact whether the Naptha being sold was of imported origin or indigenous origin. In such a situation, naturally, the amount collected could be more or could be less. It has to be noted that in the APM, there can be excess collection or short collection of duty and accordingly, oil marketing companies were required either to deposit the amount with Oil Pool Account or get reimbursement. In this case, there is no deposit or reimbursem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the appellant was to collect all the Customs duties or only CVD. The statement of the Manager (Finance), Excise Manager and the instructions issued by DGM give an impression that the terminal had been given instructions to collect only CVD. This looks logical also in view of the fact that no segregation of indigenous Naptha and imported Naptha is possible and the assessable value of indigenous Naptha is supposed to include the Basic Customs Duty element. 7A. In any case, upto 9-2-99, only additional customs duty (CVD) was paid and therefore the differential duty, if any, in this period is definitely payable. In the absence of data tanker-wise, matter has to be remanded to the original adjudicating authority to get the tanker-wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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