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TMI Blog2023 (8) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The very same issue was considered by the Hon ble High Court of Madhya Pradesh in the appellant s own case [ 2013 (12) TMI 880 - MADHYA PRADESH HIGH COURT ] and the demand was set aside holding that the duty demand on the registered dealer under Section 11D cannot be sustained. Thus, the demand cannot sustain. The impugned order is set aside - appeal allowed. - HON BLE MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) And HON BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) For the Appellant : Shri M.N. Bharathi, Advocate For the Respondent : Shri N. Sathya Narayanan, Assistant Commissioner / A.R. ORDER Order : Per Hon ble Ms. Sulekha Beevi C. S. Brief facts are that the appellant had registered warehouses/depots at Salem and Erode wherein they had collected an amount of Rs.43,60,158/- in excess of the duties paid by them on the clearances of High Speed Diesel, Motor Spirit, and Superior Kerosene Oil effected during the period from July 1996 to September 2000. Show Cause Notice was issued to demand the duty collected under Section 11D of the Central Excise Act, 1944. The Ld. adjudicating authority confirmed the demand vide Order-in-Original dated 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very same issue was considered by the Hon ble Jurisdictional High Court of Madras in the case of Commissioner of Central Excise, Coimbatore Vs. Hindustan Petroleum Corporation Ltd. [2015 (322) ELT 618 (Mad.)] wherein the Hon ble High Court examined the provision of law under Section 11D as it stood prior to 10.05.2008 and after the said date, and held that prior to 10.05.2008, the demand can be raised only against the manufacturer of the goods and not against the depot. The Ld. counsel prayed that the appeal may allowed. 4. The Ld. Authorised Representative Shri N. Sathya Narayanan supported the findings in the impugned order. 5. Herd both sides. 6. The issue is whether the appellant who is a dealer/depot is liable to pay the excise duty under Section 11D of the Act? The Hon ble Supreme Court in the case of Bharath Petroleum Corporation Limited (supra) had an occasion to consider the very same issue and held as under:- 2. The short legal question before the Tribunal was whether the assessee, being only a dealer and not a manufacturer was liable to pay Excise duty under Section 11D of the Act? 3. Accepting the plea of the assessee that the amendment of sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only in relation to the liability of the assessee under Section 11D of the Act. He has further submitted that similar appeals, in the case of the assessee itself, were decided by the Tribunal, Mumbai bench, against the revenue. The special leave petitions (Nos. 5807-5811/2004), preferred by the revenue against the said orders were dismissed vide order dated 26th July 2004. 6. In our opinion, apart from the fact that in view of the period involved in the present appeal, viz. July 1997 to August 2000, there is no infirmity in the impugned order passed by the Tribunal on merits, the present appeal is otherwise not maintainable under Section 35-L(b) of the Act as it does not involve determination of any question having relation to the rate of duty of Excise or to the value of goods for the purpose of assessment. 7. Resultantly, the appeal, being bereft of any merit, is dismissed, with no order as to costs. 7. The very same issue was considered by the Hon ble High Court of Madhya Pradesh in the appellant s own case and the demand was set aside holding that the duty demand on the registered dealer under Section 11D cannot be sustained. The relevant paragraph reads as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgments referred to by the Tribunal in Paras 6 7 and it was only tried to be emphasized in the appeal that the respondent is not a dealer but is a manufacturer. There is nothing on record to show that the respondent‟s unit at Bhitoni is a manufacturer, on the contrary, from the initiation of proceedings at the time of issuance of notice till conclusion, they are treated as dealer. As far as the demand of duty from the dealers are concerned, the matter is decided by the Supreme Court in the case of Bharat Petroleum Corporation Ltd. (supra) referred to in Paras 6 7 of the impugned judgment of the Tribunal and once the Tribunal has decided the matter based on the principles settled, we see no reason to interfere into the matter. The substantial question as is raised by the Revenue in the appeal does not arise for consideration. 9. Accordingly, finding no merit, the appeal is dismissed at this stage without notice to the respondents. 8. The Jurisdictional High Court of Madras in the case of Hindustan Petroleum Corporation Limited (supra) has discussed the issue and held that the demand can be made under Section 11D prior to 10.05.2008 only from the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X
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