2010 (8) TMI 917

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....de before us, it appears that this is a case fit for remand. Accordingly, after dispensing with pre-deposit, we take up the appeal for final disposal. 3. The appellant is manufacturer of petroleum products including motor spirit (petrol), high speed diesel oil etc. During the period of dispute (July, 2005 to February, 2008), MS and HSD manufactured in their refinery (Mahul, Mumbai) were marketed to various wholesale dealers through their depots at Wadala, Vashi and Loni. The practice was to convey the petroleum products from the refinery through a pipeline system, viz. Mumbai-Pune Pipeline (MPPL), to the said depots, wherefrom the goods were sold to the wholesale customers. From 6-9-2004, with the withdrawal of warehousing provision....

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.... provisions of Section 4(1)(b) of the Central Excise Act read with Rule 7 ibid. According to the department, HPCL should have taken the assessable value of the highest aggregate quantity sold, taking into consideration all the depots together at about the same time rather than to take the value of highest aggregate quantity sold at a particular depot over a period of time. On this basis, the show cause notice demanded differential duty on the petroleum products sold at all the three depots during the period of dispute. It invoked the extended period of limitation under the proviso to Section 11A(1) of the Act for recovery of the differential duty on the ground of 'suppression of material facts by the appellant with intent to evade payment o....

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.... mean "normal transaction value of all the depots". It was argued that the "normal transaction value" defined under Rule 2(b) and referred to in Rule 7 represented the sale price from a particular depot at the time nearest to the time of clearance of identical goods from the refinery to that depot. In this connection, reliance was placed on C.B.E. & C. Circular No. 251/85/96, dated 14-10-1996, Circular No. 354/81/2000-TRU, dated 30-6-2000 and Circular No. 643/34/2002-CX, dated 1-7-2002. In their reply to the show cause notice, the appellant also relied on the following judgments : (1)     Brakes India Ltd. v. CCE, Chennai, 2005 (184) E.L.T. 179 (Tri.-Chennai) upheld by the Supreme Court vide 2005 (187) E.L.T. A113 (S.....

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....on the following decisions of the Supreme Court : (1)     Pushpam Pharmaceuticals, 1995 (78) E.L.T. 401 (S.C.); (2)     Cosmic Dye Chemical, 1995 (75) E.L.T. 721 (S.C.); (3)     Tamil Nadu Housing Board, 1994 (74) E.L.T. 9 (S.C.); (4)     Chemphar Drugs & Liniments, 1989 (40) E.L.T. 276 (S.C.); (5)     Ugam Chand Bhandari, 2004 (62) RLT 240 (S.C.) = 2004 (167) E.L.T. 491 (S.C.); (6)     Surat Textile, 2004 (62) RLT 351 (S.C.) = 2004 (167) E.L.T. 379 (S.C.). For the same reasons as cited against invocation of the extended period of limitation, the appellant contested the demand of interest on duty raise....