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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 ..... 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. It was noticed that during the period from January, 2000 to October, 2000 the excess amount so collected worked out to Rs. 18,65,093/-. Therefore, a show-cause notice was issued to them vide notice dated 22-1-2001 by the jurisdictional Addl. Commissioner at Bhopal proposing to recover the said amount of Rs. 18,65,093/- under the provisions of Section 11D of the Central Excise Act, 1944 and also proposed to impose consequential penalty. The notice was adjudicated vide the order dated 9-4-2001 wherein the demand was confirmed under Section 11D of the Central Excise Act read with Section 28B of the Customs Act, 1962 along with interest thereon. Further, a penalty of Rs. 50,000/- was also imposed on the appellant under Rule 173Q of the Central Excise Rules, 1944. The appellant preferred an appeal before the Commissioner of Central Excise (Appeals), Bhopal, who vide the order No. 108/CE/BPL/2004 dated 10-3-2004 dismissed the appeal. Hence the appellants are before us. 3. Appeal No. B/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 demand of interest on the said amount under Section 11AB read with Section 11DD of the Central Excise Act, 1944 and also imposed an equivalent penalty of Rs. 26,95,08,644/- under Section 11AC read with Rule 25 of the Central Excise Rules, 2001. The appellant is before us against the impugned order. 4. Appeal No. E/221/05 - The appellant in this case is M/s. Bharat Petroleum Corporation Ltd., New Jalpaiguri - Top, Jalpaiguri. The appellant had both bonded as well as duty paid tanks for MS and HSD and Superior Kerosene Oil. They had purchased the MS and HSD from M/s. IOCL on payment of duty and later on sold the same to various customers. The duty paid on the HSD was 16% and duty paid on the MS was also 16%. However, w.e.f. 12-1-2002 the rate of excise duty was raised on HSD from 16% to 20% and on MS from 16% to 74%. Since the appellants sold the products as per the price fixed by Oil Coordination Committee under the Ministry of Petroleum and Natural Gas, the stock of duty paid pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 learned Advocate also relies on the judgment of the Tribunal in the case of BPCL v. C.C.E., Raipur reported in 2002 (144) E.L.T. 672 (Tri.) which has been affirmed by the Hon'ble Apex Court reported in 2004 (156) E.L.T. A326 (S.C.) and also a judgment of the Tribunal in the case of BPCL v. C.C.E., Nagpur reported in 2003 (158) E.L.T. 833 (Tri) affirmed by the Hon'ble Apex Court reported in 2004 (172) E.L.T. A13 (S.C.). 6. The learned A.R. appearing for the Revenue reiterates the findings given in the adjudication and appellate orders. 7. We have carefully considered the rival submissions. We are considering the stay applications at present. Section 11D of the Central Excise Act, 1944 reads as follows : - "SECTION 11D. Duties of excise collected from the buyer to be deposited with the Central Government. - (i) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral 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 determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise. Two conditions are required to be satisfied for attracting the provisions of the Section - (i) the person should be liable to pay excise duty under the Act or the rules made thereunder, (ii) the person should have collected any amount in excess of the duty assessed or determined in any manner as representing duty of excise. Only when these two conditions are satisfied, the provisions of Section 11D are attracted. 8. In the instant case, wherever the appellant has received duty paid petroleum products and subsequently sold the same, they are not liable to pay any excise duty on such duty paid products. In this situation, the provisions of Section 11D cannot apply ab initio. In the instant case, we notice that in Appeal No. E/2715/04 and E/221/05, the appellants were acting as dealers. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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