TaxTMI 
TaxTMI 
TaxTMI 
2012 (6) TMI 246
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.... D-3 intimation filed by them and indigenous non-duty paid product on AR-3A and also duty paid petroleum products from other manufacturers of their companies and/or other petroleum companies what are called by them as "bridging" arrangements. The imported petroleum products and the indigenous petroleum products are stored in same tanks and are being accounted for under FIFO system of material management accounting i.e. first in first out basis. The goods received under the bridging arrangements are entered in the Company's own record while the imported goods received under D-3 intimation and the indigenous goods received under AR-3A are entered in the RG-I register maintained under the Central Excise Rules. The appellants are transferring the duty paid goods received under the bridging arrangements without entering the goods physically into the tanks. These goods are normally received in the road tank lorries and are being transferred to their customers under invoice being issued by the appellants. The imported goods and the indigenous non-duty paid goods are also cleared likewise under the same series of invoices by the appellants. While clearing the indigenous non duty paid goods....
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....- 2005 (191) E.L.T. 356 (Tri.-Bang.). 6.1 The learned Counsel further submitted that although the issue has attained finality in view of the cited decisions, therefore, the impugned orders are to be set aside but it was also pointed out during the course of arguments that the Tribunal's decision in the case of HPCL Ltd. (supra) and BPCL (supra) have been appealed before the Hon'ble Apex Court and the appeals have been admitted. 7. The matter was contested by the learned Jt. CDR, (A.R.). As referral Bench took contrary view to the decisions cited by the learned Counsel for the appellants therefore, the referral Bench was of the view that the matter has to be referred to the Larger Bench, accordingly the matter was referred before us. 8. Shri M.H. Patil, learned Counsel for the appellants appeared before us and submitted that as the case law relied upon by the appellants during the course of arguments in the case of HPCL and BPCL (supra) the matter was pending before the Hon'ble Apex Court therefore, the reference was not warranted. He further submitted that the reference made by the Referral Bench is not correct in the facts of this case. The Bench objected to the arguments advan....
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....Court's decision dated 26-7-2004 in the case of M/s. BPCL [2004 (172) E.L.T. A133 (S.C.)], the Board decided that for past cases action as per AG's advice and the Hon'ble Supreme Court order is required to be taken. The Board, however, concurred with the view of the Central Excise Policy wing that by virtue of amendment in Section 11D vide Finance Act, 2008, the differential duty, if any collected by "a person" would be recoverable under Section 11D(1) subject to the condition that such extra amount has been collected as duty of excise. 8.3 The learned Advocate further submitted that the Hon'ble Apex Court in Civil Appeal No. 4107/2003 against the Tribunal's decision in the case of BPCL (supra) has decided the issue on 27-9-2011 [2011 (272) E.L.T. 654 (S.C.)] in favour of the appellants, holding that "in view of the period involved in the case is July, 1997 to August, 2000, there is no infirmity in the impugned order passed by the Tribunal on merits." Therefore, the issue has been settled by the Hon'ble Apex Court. Accordingly, reference is answered by the apex court in favour of the appellants. 9. Shri V.K. Singh, learned A.R. appeared on behalf of the Revenue and submitted that....
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....om the buyers of any goods in any manner amounts (representing duty of excise) shall forthwith pay an amount to the credit of Central Government. Therefore, from the above provisions, every person who is collected duty of central excise is liable to pay to the credit to Central Govt. Therefore, the issue who is "every person" was dealt with by the Hon'ble High Court of Andhra Pradesh in the case of Laxmi Starch Ltd, (supra) wherein the Hon'ble High Court of Andhra Pradesh observed that - "the purport of sub-section (1) of Section 11D of the Central Excise Act, 1944 and sub-section (1) of Section 28B of the Customs Act is not only to collect the amount received by manufacturers, producers, importers etc. in the form of amount excise duty/customs duty but also from persons other than the manufacturers or producers, importers etc. from whom excise duty/customs duty cannot otherwise be collected. Yet on examination of provisions of sub-section (2) of Section 11D of the Central Excise Act and sub-section (2) of Section 28B of Customs Act, it is clear that they deal with adjustment of the amount payable by the person on finalization of the assessment and crediting of the surplus to the ....
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....rted goods along with such goods produced indigenously on which duty was not paid in their storage tanks as per Board's Circular F. No. 261/6/5/84-CX., dated 17-7-1984. While clearing goods of both streams the appellants used clearance documents with the same format which showed an amount paid towards "CUS.DUTY/CX. DUTY". The appellants explained that this was owing to the common software they had used. In respect of the impugned goods they had passed on a lower amount than the actual incidence of tax on the goods they had borne. 6. We find that Section 11D(1) of the Central Excise Act reads as follows :- "(1) Notwithstanding anything to 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 excisable goods under this Act or the rules made thereunder from the buyer of such goods] in any manner representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government." In te....
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....ed. (Pronounced in open Court on ...................) Ashok Jindal, Member (J) S S Kang, VP Per: Sahab Singh: 14. After going through the reference made, I find that the excisable goods have been defined under Section 2(d) of the Central Excise Act, 1944 which reads as under:- "(d) excisable goods" means goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt" Moreover the Central Government is empowered to levy central excise duty in respect of the goods mentioned in Entry 84 of the Union List in Seventh Schedule which reads as under :- "84. Duties of excise on tobacco and other goods manufactured or produced in India except - (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics, but including medicinal and toilet preparations containing alcohol or any substance included in subparagraph (b) of this entry". I also find that under Section 3 of the Central Excise Act, 1944, Central Excise duty is leviable on the goods produced or manufactured in India. 15. The definition of excisable goods has two parts, that....