9911796707
TMI Blog2010 (5) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... id goods procured under bond and imported, customs duty-paid goods. (The latter category will hereinafter be referred to as CDP stock ) . The appellant adopted what is called first-in-first-out (FIFO) method in clearing the goods from the warehoused stock of each petroleum product. Accordingly, where CDP stock of Motor Spirit in a given storage tank was the first to have been received in that tank, the first clearance out of that tank totalling in quantity to the CDP stock so received in the tank would be treated as clearances of CDP Motor Spirit. The subsequent clearances from the same tank would be non-duty-paid Motor Spirit. All these clearances would be invariably made at APM prices as it was mandatory for all the oil marketing companies. In respect of the goods cleared by the appellant as CDP stock, the department found that the appellant was mentioning excise duty in the relevant invoices and, on this basis, it appeared that the amount mentioned as excise duty in the invoices had been collected by the appellant from their dealers but not credited to the Central Government. This aspect came to the notice of the department at the time of scrutiny of the RT-12 returns and allied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applicable to non-excisable goods. c) Not being a manufacturer, the appellant was not liable to pay duty on the goods in question and, therefore, the above provision of law is not applicable to the appellant. d) No amount representing duty of excise was collected by the appellant from their dealers even though such duty amounts were mentioned in the relevant invoices. Hence the appellant had no liability to make any payment to the Central Government under Sec.11D(1). e) Under the APM scheme, whatever duty was collected by the appellant was deposited to Oil Pool Account and therefore, neither Sec.11(D) of the Central Excise Act nor Sec.28B of the Customs Act is applicable. f) The goods in question had suffered basic customs duty, countervailing duty and special excise duty, the grand total of which would exceed any amount of duty collected by the appellant from their dealers. g) For the purpose of applying Sec.11D(1) of the Central Excise Act , the comparison should be between the total amount of customs duties paid on the CDP stock and any amount of duty collected from the buyer. The comparison cannot be between CVD on the one hand and any amount of duty collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty under the Central Excise Act or the Central Excise Rules on any goods whatsoever, that would be sufficient for the purpose of invoking Sec.11D(1). The second ingredient of the provision, referred to by the ld.Jt.CDR, pertains to collection of any amount in the nature of duty of excise by such person from his buyer on any excisable goods. It is submitted that, where the relevant invoice mentions an amount of duty of excise, it is duty determined for purposes of Sec.11D(1). If the person who issued the invoice collected such amount from the buyer but did not pay any part thereof to the Central Government , the second requirement of Sec.11D(1) stands fulfilled. The third element of Sec.11D(1) ,referred to by the Jt.CDR, pertains to the expression any excisable goods. He argues that, if the goods in respect of which demand is raised under Sec.11D(1) is goods figuring in the Schedules to the Central Excise Tariff Act as being subject to a duty of excise, that would satisfy the third requirement. The goods could be customs duty-paid as in the present case, but nevertheless it would still be excisable goods if it figures in any of the Schedules to the CETA. This argument of the ld.Jt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Central Excise Act as interpreted by the Honble High Court in the case of Hind Rubber Factory (supra) is read into the text of sub-section(1) of Section 11D, one may not prudently say that the provisions of Sec.11D(1) are not applicable to imported, customs duty-paid goods falling under the Schedules to the CETA. 9. The view which we have taken in the foregoing paragraph is contrary to the view taken by the co-ordinate benches in the cases of HPCL( 2002(149) ELT 1294), BPCL (2002(146) ELT 646), IOCL (2005(191) ELT 356) etc. 10. The ld.Counsel for the appellant has made an attempt to distinguish the case of Hind Rubber Factory (supra) with reference to the facts of that case. We have not compared the facts of the instant case with the facts of the Hind Rubber Factory case (supra). We have only considered the interpretation given by the Honble High Court to the expression excisable goodsdefined under Sec.2(d) of the Central Excise Act. This interpretation is contained in paragraph 23 of the Honble High Courts judgment, which is reproduced below:- In view of the above authorities, except the High Court of Madhya Pradesh and Allahabad, a large majority of the other Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
