2017 (2) TMI 535 - AT - Central Excise

Tribunal overturns Orders-in-Original, citing incorrect legal application. Show Cause Notices deemed unsustainable. Appellants' contentions upheld.

M/s Bharat Petroleum Corporation Ltd, M/s Indian Oil Corporation Ltd. Versus Commissioner of Central Excise, Allahabad

The Tribunal allowed both appeals, setting aside the Orders-in-Original due to the incorrect application of legal provisions. The Show Cause Notices were ... Demand of duty u/s 11D or recovery of amount u/s 11D - Concessional rate of duty - Notification 62/2002- Central Excise dated 31/12/2002 - activity of manufacture took place in tank-trucks within appellants factory and resultantly Ethanol blended Motor Spirit was cleared outside the factory - Held that: - Revenue could not decide as to ₹ 74,20,714/- & ₹ 3,43,26,040/- were the duties of excise short paid or sums which were collected in excess of duties of excise. Therefore, there is an error in the invocation of provisions of law in the said Show Cause Notice. Therefore both Show Cause Notices are not sustainable in law - Decided in favor of the assessee. Issues:- Applicability of concessional rate of duty under Notification 62/2002-Central Excise- Allegations of not blending Ethanol & Motor Spirit- Recovery of Special Additional Excise Duty (SAED)- Invocation of Sections 11A and 11D of the Central Excise Act, 1944Analysis:1. Applicability of Concessional Rate of Duty:The case involved public sector undertakings engaged in manufacturing 5% Ethanol blended Petrol. The Revenue alleged that blending was not happening as there was no separate facility, leading to inadmissibility of the concessional rate of duty. Show Cause Notices were issued for not clearing the blended product and selling it at the same price as pure Motor Spirit. The appellants contended that blending occurred within their factory premises in tank-trucks, and they were bound by government-controlled prices. The Original Authority upheld the demand and penalty. However, the Tribunal observed that blending did take place within the licensed premises, rendering the Show Cause Notices vague in invoking Sections 11A and 11D without clarity on duties short-paid or collected in excess.2. Allegations of Not Blending Ethanol & Motor Spirit:The Revenue's contention that blending was not happening due to the absence of a separate facility was challenged by the appellants, who demonstrated that blending occurred in tank-trucks within their factory premises. The Revenue's argument that the appellants did not have the manufacturing facility for the blended product was refuted, emphasizing that Ethanol blended Motor Spirit was indeed manufactured within the factory and cleared outside. The Tribunal found merit in the appellants' submissions, highlighting the actual blending process within the licensed premises.3. Recovery of Special Additional Excise Duty (SAED):The Show Cause Notices raised concerns about the collection of SAED at a concessional rate and its recovery under Section 11(D) of the Central Excise Act, 1944. The Revenue alleged that SAED was collected from customers on both Ethanol blended Motor Spirit and pure Motor Spirit, leading to recoverable amounts under the Act. However, the appellants argued that they operated under government-controlled prices and were not authorized to sell products above the fixed rates. The Tribunal noted the appellants' compliance with price regulations and the lack of clarity in the Revenue's claims regarding SAED collection.4. Invocation of Sections 11A and 11D of the Central Excise Act, 1944:The Tribunal scrutinized the invocation of Sections 11A and 11D by the Revenue in the Show Cause Notices. It pointed out the error in applying these provisions without distinguishing between duties short-paid and sums collected in excess of duties. The Tribunal concluded that the Show Cause Notices were unsustainable in law due to the ambiguity in invoking the relevant sections. Consequently, both appeals were allowed, and the Orders-in-Original were set aside based on the incorrect application of legal provisions.