2017 (3) TMI 594

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....stic consumers and recovering ex-refinery price from the OMC as sale consideration is entitled to adopt ex-storage price(APM price) as the assessable value of the said product in bulk by ignoring the provisions of Section 4 of the Central Excise Act as amended w.e.f. 1-7-2000. This issue in the present appeals itself was referred to the Larger bench of this Tribunal and the Larger Bench vide Order dated 10-9-2015 by 2:1 majority answered the reference as under: "In view of the majority order, it is held that appellant has to discharge the excise duty on the transaction value which is collected from the Oil Marketing Company by issuing commercial invoices during the disputed period. In view of the above larger bench, answering the ques....

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....ubmits that appellant is Government of India undertaking, there cannot be interest of any individual in evasion of excise duty, therefore being government of India undertaking suppression of facts with intent to evade payment of duty cannot be alleged. In support of his submission, he placed reliance on following judgments:   Fact that matter has been referred to Larger Bench shows that the issue is debatable and not free from doubt. When the courts have taken divergent views on the issue, there cannot be suppression. In such situations, extended period cannot be invoked. 1 Continental Foundation Jt. Venture Vs CCE 2007 (216) ELT 177 (SC) 2 Larsen & Toubro Ltd Vs CCE 2007 (211) ELT 513 (SC) 3 CCE Vs Telco Ltd 20....

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....e price charged in the commercial invoice is higher than the APM price, they kept on paying duty of APM price. This fact was not disclosed to the department, therefore there is clear intention of evasion of duty. Ld. Special counsel referred to the declaration made in the Central Excise invoice wherein appellant has certified that the particular in the invoice are true and correct and the amount indicted represent the price actually charged, there is no flow of additional consideration directly or indirectly from the buyer. This declaration appears to be false for the reason that there was additional consideration directly from the buyer in the invoice raised for the higher price than the price shown in the excise invoice. Therefore due to ....

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....for that reason only for every period within normal period of one year, different show cause notices were issued. Since there is no suppression of facts, the ingredient required for invoking the Section 11AC does not exist in the present case. We also find that the very same issue was earlier decided by Ahmadabad Bench reported as [2015(320) ELT 614(Tri. Ahmd] in favour of the appellant and in the present case the division bench had taken different view therefore matter was referred to the larger bench, in such a situation also the suppression of facts/ misdeclaration etc. cannot be alleged against the appellant. In the case of Larsen & Toubro Ltd (supra), Hon'ble Supreme Court held that on debatable issue when question was answered differe....

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....ous courts/tribunals, therefore the ingredient of suppression of facts, mis-declaration etc being not existing, identical ingredient required for invocation of Section 11AC, penalty was not imposable in the present case. As regard the penalty Rule 25, Ld. Counsel submitted that clause under which penalty sought to be imposed has not been mentioned therefore in view of the judgments in case of Amrit Food(supra), Sai Electricals (supra) and Binay Udyog Pvt Ltd(Supra) penalty under Rule 25 cannot be imposed. In case of Nirmal Industries Industrial Growth Centre(supra) has held that Rule 25 can be imposed only when it qualifies provision of Section 11AC of CEA, 1944. As discussed above, taking into consideration of facts and circumstances of th....