2006 (11) TMI 438

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....ted amounts representing duty which is in excess of the amount paid by the appellants to the Government. The amounts have been demanded under Section 11D of the Central Excise Act, 1944/28(b) of the Customs Act, 1962. The duty demands confirmed and the period involved in these appeals are given herein below :- S/No. Appeal No. Appellants Duty demand (Rs.) Period involved 1. C/123/2006 M/s. HPCL 4,68,60,471/- June 1998 to March 1999 2. E/941/2003 M/s. IOC Ltd. 31,25,82,805/- January 1993 to December 1997 3. E/374/2003 M/s. IOC Ltd. 6,00,50,076/- January 1998 to August 2001 4. E/6/2004 M/s. BPCL 23,31,375/- July 1996 to September 2000 2. Shri G. Shivadass, lear....

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....rged on from the customers. The duty so indicated was always the Central Excise duty and not Customs duty. The invoice raised by the appellants at the time of the sale of the goods from the terminal also did not indicate the Customs duty separately though the origin of the goods is indicated in the invoice as Customs duty paid, stock, etc. In and around 2000, the DGCEI conducted enquiries about the manner of calculation and collection of duty in respect of petroleum products cleared by the appellants from their Vijayawada terminal. The Department issued show cause notice dated 18-5-2001 alleging that the appellants had violated the provisions of Section 28B of the Customs Act, 1962 inasmuch as they had collected duty in excess of the CVD pa....

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....e issued by the DGCEI was dropped by the Commissioner of Customs, Chennai vide Order-in-Original No. 847/2003 dated 30-7-2003/6-8-2003 holding that the provisions of Section 28 cannot be invoked to confirm the demand. Similarly, the Commissioner of Customs, Visakhapatnam in his Order-in-Original No. 44/2003-04 (RP) dated 19-1-2004 has dropped the demand by following the Order-in-Original passed by the Commissioner of Customs, Chennai. The Department has not filed any appeal against the two Orders-in-Original. Therefore, the same have reached finality. As the Department has accepted the above decision, the same dispute cannot be raised as held by the Supreme Court in the case of CCE v. Bigen Industries Ltd. reported in 2006 (197) E.L.T. 305 ....