9911796707
TMI Blog2018 (7) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... able on LDO including the BED and the specific duty is higher than that on FO in the impugned seven transactions. Therefore, there is no justification for demanding payment of the amount under section 11D - demand set aside. Penalty - Held that:- The appellant himself has worked out and paid the differential duty and only after receiving such intimation of payment of duty, the department has issued show-cause notice followed by the impugned order - no allegation of suppression can be sustained against the appellant - penalty set aside. Appeal allowed in part. - E/00414/2011 - 41659/2018 - Dated:- 30-5-2018 - Shri V. Padmanabhan, Member (Technical) And Shri P. Dinesha, Member (Judicial) For the Appellant: Shri D. Santhana Gopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional exigencies. In such storage tank containing the dead stock of LDO, FO is filled. Thus, the LDO dead stock and FO gets mixed. Resultantly LDO is cleared as FO, at the price of FO, on payment of excise duty applicable to FO, i.e., 16%/14% + education Cess. 2.4 For the earlier period from June 2003 to January 2005, SCNs were issued to the Appellant proposing to demand excise duty on LDO so cleared on the ground that the LDO was used in manufacture of FO and exemption under Notification no.67/95 -CE dated is not available. The SCN proposals were confirmed vide O-I-O No.2/2005 dated 25.02.2005 and O-I-O-no.58/2005 dated 30.06.2005 Thereafter, the Appellant started paying excise duty under protest on clearance of LDO. 2.5 The Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant also computed the differential duty on clearances of dead stock of LDO cleared during the impugned period viz., February 2007 to December 2009 and discharged the same along with interest [Differential duty of ₹ 4,97,94,035/- along with interest of ₹ 94,06,110/-]. The Appellant intimated the department the above payment vide letter dated 11.03.2010. 2.9 The present case arises out of common O-I-O dated 10.05.2011 (impugned Order) covering the denovo adjudication for the period June 2003 to January 2005 and February 2007 to December 2009 (impugned period). 3 . Case of the Department 3.1 Adjustment of ED paid on LDO is allowed as per the Final Order of the Hon'ble CESTAT, Chennai. However, in respect of 7 nos. of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n transactions during the period Nov. '07 Jul.'08, in which the Refinery Transfer Price of FO happened to be more than RTP of LDO, which case the department has insisted on payment of differential duty, which in these cases appears to be negative, in terms of section 11D of the Central Excise Act. He submitted that the differential duty which amounts to approximately ₹ 12.25 lakhs has already been paid under protest by the appellant. But, he agitated that such amount was not payable by the appellant, inasmuch as, the total excise duty payable on LDO for the above transactions is more than the excise duty paid on the FO, which was actually cleared. He also argued that the department is not justified in levying penalties, inasmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the considered opinion, that there is no justification for demanding payment of the amount under section 11D. 10. The only issue that remains is that of imposition of penalty. The adjudicating authority has imposed penalty equal to the duty amount held payable i.e., about ₹ 5.12 crores. We note that in the present case, the differential duty became payable as a consequence of the order of CESTAT, dated 20.11.2008. The appellant himself has worked out and paid the differential duty and only after receiving such intimation of payment of duty, the department has issued show-cause notice followed by the impugned order. We find no justification for imposition of penalty in these circumstances, in which, no allegation of suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
