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TMI Blog2023 (7) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... ng was undertaken in the licensed premises and the blended goods were cleared from the licensed premises. The product was subjected to strict control and orders issued by Central and State Government from time to time under the Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 1998 where under the quality and specification of the Motor Spirit was to strictly monitored and complied. Also at the Vashi Terminal where the duty paid Motor Spirit and Ethanol were received and where after blending the same, EBP was generated, the respondent had carried out the tests and 9 out of 15 tests which indicted that it conformed to the BIS 2796:2000 specification and the Control Order, 1998. Only after such procedure as to verification of the compliance under Control Order 1998, the respondent had cleared/sold the said goods to their customers similar to what other Refineries/terminals did. The Tribunal has also rightly observed that it could not lost sight of the fact that the respondent was a Public Sector Undertaking and on many occasions, in absence of facilities at Government Laboratories, the tests conducted in well equipped lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions of law for determination of this Court: (a) Whether the CESTAT was right in setting aside demand of duty under Section 11D of the Central Excise Act, 1944 merely because duty attributable to Ethanol is not shown and recovered separately in the invoice and it s composite cum duty price? b) Whether the CESTAT has considered all the findings of the adjudicating authority, who has confirmed the demand of duty under Section 11 D of the Central Excise Act, 1944? 2. Briefly the facts are: The respondent was registered with Central Excise Department for clearance of petroleum products, namely, Motor Spirit, High Speed Diesel and SKO falling under Chapter 27 of Central Excise Tariff Act, 1985. The respondent received these goods through pipeline from Mumbai Refineries at their Vashi depots and cleared the same to customers. The respondent cleared Ethanol Blended Petrol (EBP) (Gasohol) consisting of by volume 95% Motor Spirit commonly known as petrol and 5% ethanol. The EBP was cleared at concessional rate of duty as per Notification No. 28/2002 dated 13 May, 2002 amended by Notification No. 16/2003 dated 1 March, 2003 read with Notification No. 14/2003 and Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion from various types of duties on the clearance of EBP was conferred under various exemption Notifications issued from time to time. 6. It appears that the primary contention as urged by the revenue before the CESTAT was to the effect that the respondent to be eligible for exemption under the said notifications was required to show that EBP conforms the BIS 2796:2000 standards. The revenue alleged that the respondent had failed to establish that the EBP cleared by them from their Vashi Terminal conformed to the BIS specifications. The revenue contending that since the Vashi Terminal did not have the facility to conduct all the 15 tests required for BIS 2796:2000 specification, a demand notice be issued to the respondent. 7. However, the fact remains that after drawing samples of EBP, the respondent had got the sample tested at their Refinery, which was equipped with the facility to test all the parameters and produced two test reports indicating that the sample conforms the BIS 2796:2000 specification. 8. It appears that on remand of the proceedings to the adjudicating authority by the said order passed by CESTAT, the learned Commissioner of Central Excise although consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Central Excise, Allahabad 2017 (351) E.L.T. 313 (Tri. - All.) and in the respondent own case in Hindustan Petroleum Corporation Ltd. vs. Commissioner of Central Excise, Aurangabad 2003 (162) E.L.T. 391 (Tri. - Mumbai), Ms. Patil would submit that the contention as urged on behalf of the revenue are untenable and the order passed by the Tribunal would not require any interference. 12. We have heard learned counsel for the parties. We have also perused the record and the impugned order. At the outset, we may note that the controversy in the present proceeding pertains to the duty demand under section 11D of the C.E. Act, which provides for Duties of excise collected from the buyer to be deposited with the Central Government . It would be appropriate to note the said provision, which reads thus: Section 11D - Duties of excise collected from the buyer to be deposited with the Central Government - (1) 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 or the rules made thereunder, every person who is liable to pay duty under this Act or the rules mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove provision, it is clear that sub-section (1) of Section 11D ordains that 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 or the rules made thereunder, every person who is liable to pay duty under C.E. Act or the rules made thereunder, has collected any amount in excess of the duty, assessed or determined and paid on any excisable goods under C.E. Act or the rules made thereunder from the buyer of such goods, in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. 14. The question is whether any of the ingredients of the provision are attracted in the present case. 15. It is clear that in the present case, the blending was undertaken in the licensed premises and the blended goods were cleared from the licensed premises. The product was subjected to strict control and orders issued by Central and State Government from time to time under the Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 1998 where under the quality and specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and also duty paid ethanol, which was blended in the ratio of 95:5 at the time of clearance from the Vashi unit to the customers in tankers. The price per kilolitre of EBP was similar to the price charged by the respondent for unblended motor spirit to the customers. In the invoice the duty paid on motor spirit (EBP) was not shown separately attributable to Motor spirit and Ethanol, but the sale price of EBP was a composite inclusive of duty. Thus, the price charged was inclusive of duty, and the duty attributable to Ethanol was not shown and recovered separately in the invoice, the same could not be recoverable under Section 11D of C.E. Act. It may also be observed that only where any amount is collected representing as excise duty, the same is required to be credited to the Government. This is a case in which the revenue could not show that the respondent after blending ethanol with duty paid motor spirit collected amounts separately, mentioning the duty on ethanol in the invoices, but the same was not credited to the Government. In such situation, Section 11D of C.E Act was certainly not attracted as the crucial requirement to attract Section 11D was certainly not being fulfil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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