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TMI Blog2013 (12) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of Assessee. - E/146, & 307/2008 - Final Order Nos. A/292-295/2013-WZB/C-II(EB) - Dated:- 15-4-2013 - S S Kang And P K Jain, JJ. For the Appellants : Shri M H Patil Adv., Ms Padmavati Patil, Adv. And Shri Gajendra Jain, Adv. For the Respondents : Shri K L Goyal, Commissioner, AR PER : P K Jain These four appeals have been filed by M/s. Hindustan Petroleum Corporation Ltd. (hereinafter referred to as appellant) against the four Orders-in-Original pertaining to different periods as detailed - Sr.No. Appeal No. Period O-in-O No. date Amount in Dispute 1. E/146/08 Nov. 2005 to Aug. 2006 No.49/2007 dated 11.12.2007 Duty of Rs.7,51,62,704/- interest and penalty of Rs.7,51,62,704/- 2. E/307/08 Sept.2006 to June 2007 No.8/Commr./M.II/2008 dated 14.2.2008 Duty of Rs.9,99,07,326/- interest and penalty of Rs.9,99,07,326/- 3. E/2009/10 April 2008 to Sept. 2008 No. 06/2010 dated 08.10.2010 Duty of Rs.6,03,49,647/- interest and penalty of Rs.6,03,49,647/- 4. E/521/11 Oct. 2008 to Aug. 2009 No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, Alibag vide his letter F.No.V.Gen Bond/52/RCF/ABG/03-04/Pt-I dated 1.4.2005 replied as under:- Please refer to your letter No. TH/FIN/Excise/2004-05, dated 23 rd March'2005 on the above subject. In this connection, the mater is examined, C.T.2 was required under Chapter-X procedure which has now been replaced by the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods)Rules, 2001 C.T.2, as it stands today, is meant for the procurement of goods under procedure for export warehousing under Rule 20 of the Central Excise Rules, 2002. Further, for availment of exemption as per Sr.No.301 of Notification No.6/2003 dt. 01.03.2003 as amended, no procedure as laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty or Manufacture of Excisable Goods), Rules, 2001 is required to be followed. No such condition is stipulated in the said Notification. Only condition is that the impugned goods should be exempted from customs duties when imported into India and as per Customs Notfn. No.21/2002 dt. 01.03.2002, Naphtha is exempted. In the circumstances no bond is required to be executed as in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f both sides. 8. Naphtha is exempt from payment of excise duty if supplied against international competitive bidding and used in the manufacture of fertilizers. The relevant Notification is No.6/2002-CE dated 1.3.2002 (Serial No.301) as amended read with Customs Notification No. 21/2002-Cus dt. 1.3.2002 (Serial No.76), Notification No.6/2002-CE dt. 1.3.2002 was superseded by Notification No. 6/2006-CE dt. 1.3.2006. However, there is a corresponding entry at Sr. No. 91 and the description and conditions in the new Notification continues to be same as in Notification No.6/2002-CE dt. 1.3.2002. It would be appropriate to reproduce the relevant part of these notifications. Relevant part of Notification no. 6/2002 is: Table S. No. Chapter or heading No. or sub-heading No. Description of goods Rate under the First Schedule Rate under the Second Schedule Condition No. (1) (2) (3) (4) (5) (6) 301 Any Chapter All goods supplied against International Competitive Bidding Nil Nil 64 Condition No.64 mentioned in Column no.6 is as under:- If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable if the importer follows condition No.5 in the Customs Notification No.21/2002 which mandates that the importer follows the procedure set out in the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods)Rules, 1996. 11. On perusal of the Customs (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996 we find that these Rules prescribe procedure to be followed by a manufacture of excisable goods while importing any inputs/material at concessional rate for the manufacture of excisable goods. In the brief, the said Rules prescribes, the manufacture will take registration with the excise authorities, when manufacture intends to import goods at concessional rate of duty he will file an application to the Assistant/Deputy Commissioner of Central Excise having jurisdiction over the manufacturing unit indicating the estimated quantity and value of the goods to be imported, particulars of the notification applicable on such import and the port of import. Such an application is required to be countersigned by the Jurisdictional Central Excise Assistant/Deputy Commissioner. The manufacture is also required to exec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the two set of Rules are exactly same. If the said Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules 2001, were adopted or any other procedure adopted to ensure that the Condition No.5 of Customs Notification No.21/2002 dt. 1.3.2002 read with Customs Rules (Import of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 1996, the liability of the differential duty in the event of the goods being used other than for manufacture of fertilizer would have been clearly laid down. 14. In case of failure to use the imported goods for the intended purpose (in this case fertilizers), the manufacturer where the goods were intended to be used is required to pay the differential customs duty. If the importer and user manufacturer are one and same, there is no difficulty. There can be situation, where the importer of the goods is A but the goods are to be used in the factory of B. In such a situation also, though the goods may be imported by A but the liability to pay the differential duty in the event of failure to use the goods is on B. In the present case Appellant would be 'A' and M/s. RCF 'B'. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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