2019 (7) TMI 900 - AT - Central Excise

Tribunal: Oil cess not applicable to condensate, NCCD imposition unjustified. Show cause notices time-barred.

The Tribunal ruled that oil cess is not applicable to condensate under the Oil Industries Development Act due to its classification as distinct from crude ... Imposition of the oil cess and National Calamity Contingent Duty (NCCD), education cess (EC), secondary and higher secondary education cess (SHE) - condensate which emerges out during the process of processing of the natural gas in the appellant’s natural gas processing plant - HELD THAT:- The appellant have been classifying the product under chapter sub-heading 2709 of the Central Excise Tariff Act claiming it as a form of natural gas - The assessee have been filing the required ER-1 returns for the same, wherein they have claimed that the condensate being form of the gas is nil rated so far as central excise duty is concerned and therefore other duties such as all cess, NCCD, education cess, secondary and higher secondary cess, on the quantities of condensate cleared by them is not leviable. The issue has previously been decided by this Tribunal in the appellant’s own case M/S FOCUS ENERGY LTD. & OTHERS VERSUS C.C.E. JAIPUR [2018 (12) TMI 1168 - CESTAT NEW DELHI] where it was held that oil cess is not leviable on the “condensate” and under OIDA either on merits or also on limitation. Appeal allowed - decided in favor of appellant. Issues Involved:1. Imposition of oil cess and National Calamity Contingent Duty (NCCD) on condensate.2. Classification of condensate under Central Excise Tariff.3. Applicability of various cesses (education cess, secondary and higher education cess) on condensate.4. Limitation period for issuing show cause notices.Detailed Analysis:1. Imposition of Oil Cess and NCCD on Condensate:The primary issue in the appeal concerns whether oil cess and NCCD, along with other cesses, are applicable to the condensate produced during the natural gas processing. The appellant classified the condensate under sub-heading 27090000 of the Central Excise Tariff Act, claiming it as a form of natural gas and thus subject to a nil rate of duty. The department argued that condensate should be considered crude oil, attracting excise duty, oil cess, and NCCD. The Tribunal previously ruled in the appellant's favor, stating that condensate does not fall under the definition of crude oil and thus is not subject to oil cess under the Oil Industries Development Act (OIDA).2. Classification of Condensate Under Central Excise Tariff:The appellant has been classifying condensate under chapter sub-heading 2709 of the Central Excise Tariff Act, claiming it as a form of natural gas. The Tribunal examined the definitions under various acts and rules, including the Petroleum and Natural Gas Rules, 1954, which define condensate as low vapor pressure hydrocarbons obtained from natural gas through condensation. The Tribunal found that condensate, characterized by its physical and chemical properties, differs significantly from crude oil. The Tribunal concluded that condensate should not be classified as crude oil for the purpose of imposing oil cess.3. Applicability of Various Cesses on Condensate:Given the Tribunal's conclusion that condensate is not crude oil, the imposition of oil cess and other related cesses like NCCD, education cess, and secondary and higher education cess on condensate is not justified. The Tribunal emphasized that the legislative intent did not include taxing condensate under OIDA, and thus, these cesses are not applicable.4. Limitation Period for Issuing Show Cause Notices:The Tribunal also addressed the issue of the limitation period for issuing show cause notices. The show cause notices were issued on 25 March 2015 for the period March 2014 to October 2014. The Tribunal found that the demand was time-barred as no extended period of limitation was invoked in the show cause notices. The Tribunal relied on the decision in the case of Magara Industries Pvt. Ltd. vs. Commissioner of Customs New Delhi, which held that demands issued beyond the normal period without invoking the extended period are time-barred.Conclusion:The Tribunal concluded that the oil cess is not leviable on condensate under OIDA, either on merits or due to the limitation period. Consequently, the imposition of NCCD and other cesses on the condensate is also not justified. The Tribunal set aside the impugned demand and allowed the appeal, following the precedent set in the appellant's earlier case. The order-in-appeal was deemed without merit and was set aside, with the appeals being allowed.(Operative part of the order pronounced in open court.)