TaxTMI 
TaxTMI 
2018 (1) TMI 105
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....and upheld the Order-in-Original. 2.1. Briefly the facts of the present case are that the appellants are manufacturers of petroleum products falling under chapters 27, 28 and 29 of the CETA, 1985 and they are clearing the petroleum products manufactured by them on payment of Central Excise duty to Oil Marketing Companies (OMCs) i.e. BPCL, IOCL, HPCL and IBPL. The assessee had been removing the petroleum products without payment of duty to various warehouses of OMCs across the country under the erstwhile warehousing provisions. Consequent on the withdrawal of the warehousing provisions, the product being sold at different places at different prices, the assessee was not able to determine the normal transaction value at the time of clearan....
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....ppellant or it is payable on the subsidised price at which the OMCs so sell the goods (SKO i.e. Superior Kerosene Oil) under PDS and LPG-Liquefied Petroleum Gas Domestic to their consumers. 5. Learned counsel for the appellant submitted that the OMCs sell SKO (PDS) and LPG-Domestic to ultimate consumers at the subsidised selling price irrespective of the fact that the transaction between the appellant and the OMCs take place at transaction value. He further submitted that the appellant does not determine the value of the LPG (Domestic). Therefore the subsidy given by the Government to compensate the loss due to Administered Price Mechanism (APM) is not includable in the assessable value. He further relied upon the CBEC circular No.354/81....
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....mmissioner [2010-TIOL-1419-CESTAT-MUM] iii. CCE, Jaipur-II Vs. Super Synotex (India) Ltd. [2014(301) ELT 273 (SC)] iv. Oil & Natural Gas Corporation Ltd. Vs. CCE, Surat [2015(320) ELT 614 (Tri. Ahmd.)] 6.2. He also submitted that this Tribunal on an identical issue has rejected the appeal of the Kochi Refineries Ltd. vide its Final Order No.20925/2016 decided on 06/10/2016 wherein identical issue was involved. He further submitted that this Tribunal after considering the various submissions of both the parties rejected the appeal of the Kochi Refineries Ltd. Relevant findings are reproduced below:- 10. The duty of Central Excise is charged on the transaction value as mentioned in Section 4(1) of the Central Exc....
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....The provisions of Section 4(1) of Central Excise Act, 1944, are very clear. These provisions state about the following elements of the assessable value/transaction value : (i) The sale of the goods by the assessee for delivery at the time and place of removal; (ii) The assessee and the buyer are not related; and (iii) Price is the sole consideration for sale. 10.1.2. In the present case, the transaction value would be the price, where above three elements/conditions are present or fulfilled. We find that above three elements are present in the case of the amount / the price paid by OMCs (other than the BPCL). The price which is charged by the appellant KRL from the Oil Marketing Companies (other than the ....
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....on, is paid by the buyer OMCs and received by the seller appellant and that only can be taken as assessable value (transaction value) for the purpose of payment of Central Excise duty. In the present case, subsidized price is not the sole consideration; therefore, it is not the transaction value for the purpose of charging Central Excise duty. 10.3. The appellant submits that the Central Board of Excise & Customs (C.B.E.C.) issued clarification Circulars saying that the subsidized price is to be taken as assessable value. However, when the provisions relating to valuation given in the Section 4(1) of the Central Excise Act, 1944 are very clear, this submission of the appellants and the said CBEC Circulars do not have sufficient leg....