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TMI Blog2012 (10) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... - E/2715 and 4820/2004 and E/221/2005 - S/951-953/2011-WZB/C-II(EB) - Dated:- 16-12-2011 - S/Shri Ashok Jindal, P.R. Chandrasekharan, JJ. REPRESENTED BY : Shri M.H. Patil, Advocate, for the Appellant. Shri V.K. Singh, AR, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. There are three appeals and three stay applications for consideration. As the issue involved in all these appeals is identical, they are being taken up for consideration and disposal together. 2. Appeal No. E/2715/04 - The appellant in this case is M/s. Indian Oil Corporation Ltd. (IOCL) having their depot at Vthani, Jabalpur, Madhya Pradesh. They are registered with the Excise Department as dealer and are engaged in the trading activity of petroleum products and issue of Modvatable invoices on sale of such products. It was observed that the appellants received duty paid indigenous Furnace Oil from M/s. IOCL, Navghar, Mumbai and on scrutiny of the appellants invoices, it was seen that they have charged/collected some extra/excess amount from the customers in the name of BCD/CED in respect of the said furnace oil than what was actually paid to the Government by M/s. IOCL. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 21/2002 dated 13-5-2002. The appellant in turn sold the same duty paid stock to its retail pump outlets after charging 100% of the applicable rate of duty. During the period from 1-9-2002 to 31-8-2003, the appellant had sold a total quantity of 83067.131 KL of HSD and the excess excise duty collected by them from their buyers amounted to Rs. 14,18,98,224/-. Similarly during the period from 1-11-2002 to 31-8-2003 they had sold 18,559.968 KL of duty paid MS by collecting excess excise duty than what was remitted to the exchequer and the said excess excise duty amounts to Rs. 10,30,06,206/-. Thus, a total amount of excess excise duty collected by the appellant but not remitted to the exchequer worked out to Rs. 24,49,04,430/-. Both the show-cause notices were adjudicated by a common order dated 7-7-2004 by the Commissioner of Central Excise, Siliguri and in the said order, the learned Commissioner confirmed a duty demand of Rs. 26,95,08,664/- (Rs. 2,46,04,214/- vide the notice dated 6-9-2003 + Rs. 24,49,04,430/- vide notice dated 13-1-2004) under Section 11D of the Central Excise Act, 1944 read with Section 11A of the Act. The learned Commissioner also confirmed a deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not collected the excess amount as excise duty in their commercial invoices issued to the buyers and in all these invoices they have shown as excise duty element equal to that paid by the refineries. In many cases even excise duty amount is not reflected in the invoices and only price is charged as per the price fixed by the Oil Coordination Committee in the Ministry of Petroleum and Natural Gas. As regards appeal No. E/4820/04, in respect of the demand pertaining to the petroleum products received from M/s. IOCL, Siliguri they have acted as dealers and the duty demand in this case amounts to Rs. 24,49,04,430/-, the provisions of Section 11D are not attracted when they operate as dealers. In the case of petroleum products which were received for payment of duty and bonded in their storage tanks and they have discharged the excise duty liability in terms of Notification No. 29/2002-C.E., dated 13-5-2002 read with Notification No. 34/2004-C.E., dated wherein in respect of petroleum product originated from North East Refineries, they are eligible for concessional rate of duty @ 50% of the normal rate of duty and, therefore, they have correctly discharged the duty liability. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (1A) or sub-section (3), as the case may be, shall be adjusted against the duty of excise payable by the person on finalisation of assessment or any other proceeding for determination of the duty of excise relating to the excisable goods referred to in sub-section (1) and sub-section (1A). (5) Where any surplus is left after the adjustment under sub-section (4), the amount of such surplus shall either be credited to the Fund or, as the case may be, refunded to the person who has borne the incidence of such amount, in accordance with the provisions of section 11B and such person may make an application under that section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for the refund of such surplus amount. The said Section applies to every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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