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TMI Blog2016 (8) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... price, hence, we do not find merit in the contention of the Revenue that in all the invoices both the prices were not reflected. - Appellant's as well as Revenue's appeal rejected - Appeal No. E/1348/2007, E/57/2008 [Cross Objection - E/CO/24/2008] - ORDER No. A/10679-10680/2016 - Dated:- 25-7-2016 - Dr. D. M. Misra, Hon'ble Member (Judicial) And Mr. P. M. Saleem, Hon'ble Member (Technical) For the Assessee : Shri T.C. Nair Ms. M.M. Patil, Advocates For the Revenue : Shri J. Nagori, Authorised Representative ORDER Per : Dr. D. M. Misra Revenue as well as the Assessee are in appeal against the Order-in-Original No. 07-COMMR-VDR-II-MP-2007-08 dated 09.10.2007 passed by the Commissioner, Central Excise Vadodara. 2. Briefly stated the facts of the case are that the appellant- assessee M/s. Indian Oil Corporation Limited, Dumad registered with the department for operating the bonded warehouse and engaged in receiving SKO (PDS) under bond from IOCL (Gujarat Refinery, Vadodara) and clearing the SKO (PDS) to Oil Marketing Companies on payment of duty. It was alleged by the department that during the period from 01.12.2001 to 05.09.2004, the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt and recorded its finding in disposing the Appeal. Therefore, the appellant has no case on merit and the present Appeal of the assessee be decided accordingly. 5. Arguing the Revenue s appeal, ld. A.R. submitted that the Ld. Commissioner has wrongly dropped the demand on the ground of limitation without appreciating the fact that the appellant has made clearance of SKO (PDS) reflecting two prices on the excise invoices. It is his contention that even though the price at which the goods were sold to OMCs and the price at which the excise duty was paid, claimed to have been reflected in the invoices; however, the same was not for the entire period of demand. It is his contention that since all the facts were not disclosed to the department, thus, there is an element of suppression and accordingly, extended period of limitation is attracted, which the ld. Commissioner has failed to appreciate and therefore, the order is bad in law. Further, he has submitted that merely because the appellant is a PSU, therefore extended period is inapplicable cannot be accepted in view of the decision of the Tribunal in the case of Bharat Petroleum Corporation Limited vs. CCE, Nasik 2009 (242) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal is liable for rejection. 8. Regarding the Revenue s Appeal on the time-bar issue, we find that Ld. Commissioner after analysis of the facts and evidence on record has recorded detailed findings advancing cogent reasons as to why the extended period of limitation cannot be invoked in the present circumstances. It is necessary to visit the relevant portion of the order, which reads as follow:- 9. Another plea of the Assessee company is that the demand of differential duty is time barred as while the show cause notice invokes extended period under proviso to Section-11 (A) (1) of Central Excise Act, 1944 alleging that the Assessee Company have deliberately not paid duty on the correct Transaction Value with an intention to evade the payment of duty but, there is no evidence whatsoever in this regard. It has also been pleaded that the Assessee had never suppressed any facts in so far as valuation of SKO was concerned; that the department was well aware that the excise duty was payable only on assessable value of SKO fixed by the Ministry of Petroleum Natural Gas and it was clear that the departmental authorities were aware of the fact that the Assessee were paying dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistry of Petroleum Natural Gas and not on the Transaction value. In view of this the extended limitation period under proviso to Section-11 A (1) of the Central Excise Act, 1944 is not available to the department in this case. 9. From the allegations levelled in the show cause notice, we find that the very basis for alleging short payment of duty against the appellant was that the appellant had, though reflected the transaction price with the OMCs and also the price at which the OMCs sold the goods to customers in the respective invoices, but chose to discharge duty only on the lower value i.e. the price at which the goods were sold to the ultimate consumers by the OMCs resulting into short payment of duty. In other words, the facts are fully disclosed in respective invoices mentioning two prices and the duty had been discharged on the lower price. Hence, we do not find merit in the contention of the Ld. A.R that in all the invoices both the prices were not reflected. The principle of law relating to invoking of extended period of limitation is well settled by the Hon ble Supreme Court. In Chemphar Drugs case(supra) their Lordships observed as: 8 .. In order to make th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated above, the assessee is a Public Sector Company. It is owned by the Government of India. The Department was aware that the assessee was a refinery. Nothing prevented the Department from visiting the site. Nothing prevented the Department from inquiring into the process within the refinery in the matter of production of naptha, sulphur and electricity. Generation of electricity was also used for the running of the refinery. The electricity was supplied to Tamil Nadu Electricity Board (partly). In the circumstances, there was no suppression on the part of the assessee and, therefore, we are of the view that the Department was wrong in invoking the extended period of limitation under the show-cause notice dated 22nd December, 1998 for the period December 1993 to July 1998. The demand to that extent is beyond limitation. The assessee succeeds in that regard. 10. Needless to emphasize, the dispute on valuation of petroleum products between the Appellant and the department has its genesis much before the present demand notice. To sort out the dispute, necessary Circular was issued by the CBEC after introduction of Transaction Value method of assessment w.e.f 01.07.2000. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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