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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 ..... 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 04.03.2004. Against this, the appellant filed appeal before the Tribunal and vide Final Order No. 217-222/2012 dated 08.03.2012, the appeals filed by the assessee were remanded with a direction to the original authority to verify the invoices and also see whether the principle laid down in the case of M/s. HPCL Vs. CCE [2003 (163) ELT 391 (Tri. - Mum.)] would be applicable. Pursuant to the remand order, the adjudicating authority vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue is no more res-integra and the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Meerut Vs. Bharath Petroleum Corporation Ltd. [2011 (272) ELT 654 (SC)] had considered the very same issue and held that as per the provision of law contained in Section 11D as it stood prior to the amendment dated 10.05.2008, it is the manufacturer who is liable to pay the duty and that therefore the demand cannot be raised against the depot. 3.2 The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession "every person‟ in sub-section (1) of Section 11-D as the manufacturer/producer as also the expression „every person‟ appearing in Section 28-B of the Customs Act as the importer. It was the above view that has been expressed by this statutory amendment under Section 103 of the Finance Act 2002 with retrospective effect from 20-9-91. In the present case, we are concerned with the demand for a period from July 1997 to August 2000. Under these circumstances, the appellant‟s contentions are only to be accepted. No demand can be raised against the appellant under Section 11-D as it is not the manufacturer of the concerned goods. In the result, we set aside the impugned order and allow the appeal." 4. Mr. Arijit P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under:- "6. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling and distributing the same through the depot situated in Bhitoni. It is also indicated in this order that the appellants are receiving the duty paid petroleum product including Furnace Oil, both imported and indigenous, from various resources. It is, therefore, clear from there assertions that the respondent is a dealer and not a manufacturer. Even before the Tribunal, when the matter was pending, there was nothing to indicate that the respondent is termed as manufacturer and not a dealer. The Tribunal treated the respondent to be dealer and not a manufacturer and, therefore, the question of law already decided in the case of the Bharat Petroleum Corporation Ltd. (supra) pertaining to a dealer has been applied and the matter has been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11D, the following conditions have to be satisfied : (a) The person should be liable to pay duty. (b) The amount had to be collected by any person on excisable goods. (c) That person should have collected any amount from the buyer of such excisable goods in any manner as representing the duty of excise." 5. Section 11D of the Central Excise Act, 1944 reads as follows : "(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 made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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