TaxTMI 
TaxTMI 
2009 (3) TMI 733
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....and whether such recovery of excess amount would attract the provisions of Section 28B of the Customs Act, 1962. 2. Heard both sides. Shri M.H. Patil, learned advocate on behalf of the appellant submitted that they had not at all collected excess duty from the customers. He drew our attention to the plea which was also raised before original adjudicating authority that in the invoices they had shown the duty element under the heading Customs Duty/Excise Duty. He submitted that what was indicated as Customs duty is the total of all types of Customs duties and not merely CVD. He also cited several decisions of the Tribunal and Commissioner (Appeals) as listed below and contended that in all these cases, the relief was given to the par....
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....n the other hand, submits that the fact remains that the appellants had collected excess CVD in the guise of Customs duty. He drew our attention to the statement of Manager (Finance), Shri K.S. Raghavendran of Kandla terminal, who has explained the method adopted for charging CVD to their customers. He had also stated that for charging CVD, the CVD paid at the time of ex-bond was calculated on the basis of assessable value of the imported Naptha whereas at the time of sale of Naptha to their customers, the CVD was calculated on the basis of assessable value of indigenous Naptha being sold by them at that time, which indicated that the actual value of Naptha imported was not taken into consideration for calculation of CVD while dealing with ....
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....e have considered the submissions made by both sides in detail. Learned advocate for the appellants argued that their case is already covered by Several decisions of the Tribunal/Adjudicating authorities rendered in respect of their own company as well as other oil marketing companies and therefore the issue is no more res integra. When it was pointed out to him that the decisions of the Tribunal rendered in respect of Diesel/LPG/SKO which were subjected to APM of Govt. of India, cannot be applied to Naptha which was not under APM, he argued that in all these decisions, the fact that appellant had shown Customs duty in the invoices was taken into account and it was also accepted that such Customs duty includes both the Basic Customs Duty as....
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....ich the excess duty collected, if any, on sale of product is credited to the Oil Pool Account and deficiency in duty recovered on sales is reimbursed by Oil Pool Account and since the Oil Pool account is maintained by Central Govt., excess duty collected is deposited with Central Govt. itself and therefore the provisions of Section 28B of Customs Act are not applicable. The Commissioner Vaizag in his order followed the logic of CC Chennai in OIO No. 847/2003, dt. 30-7-03 and cited the above observations of the Commissioner Chennai for coming to the conclusion that the demand has to be dropped. Therefore, reliance of the appellant on both these cases does not help them since in both these cases, the demands were dropped on the ground that ex....
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....rent procedure altogether. The practice adopted by the appellant terminal of IOCL is against their own internal instructions. OIO had also brought out the fact that IOCL terminal at Hazira had followed the correct practice. Therefore, we are unable to accept the claim that what was collected was only the total Customs Duty and not CVD alone. However, the fact remains that amount of Customs duty collected by the appellant has nothing to do with what was actually paid because procedure adopted was to take the assessable value of the indigenous Naptha and calculate the duty irrespective of the fact whether the Naptha being sold was of imported origin or indigenous origin. In such a situation, naturally, the amount collected could be more or co....
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....r was collected was CVD and therefore if there was any excess collection, it has to be deposited under Section 28B of Customs Act, 1962. In the absence of break-up of duty recovered tanker-wise in the statement submitted before us, no definite conclusion can be arrived at as to whether intention of the appellant was to collect all the Customs duties or only CVD. The statement of the Manager (Finance), Excise Manager and the instructions issued by DGM give an impression that the terminal had been given instructions to collect only CVD. This looks logical also in view of the fact that no segregation of indigenous Naptha and imported Naptha is possible and the assessable value of indigenous Naptha is supposed to include the Basic Customs Duty ....