AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 222
X X X X Extracts X X X X
X X X X Extracts X X X X
....BP was cleared at concessional rate of duty as per Notification No. 28/2002 dated 13.5.2002 amended by Notification No. 16/2003 dated 1.3.2003 read with Notification No. 14/2003 and Notification No. 15/2003, further amended by Notification No. 12/2004 dated 4.2.2004. Alleging that the appellant had not complied with the condition of said notifications inasmuch as the EBP did not satisfy the Bureau of Indian Standard's (BIS) specification 2796:2000, two SCNs were issued to them for the period April,2003 to June, 2004 demanding total duty of Rs. 13,37,17,740/-. Also demand notice was issued for recovery of the said amount under Section 11D of Central Excise Act, 1944 alleging that though the duty was collected from the customers but not deposited with the Govt.. On adjudication, the demands have been confirmed with interest and penalty. Aggrieved by the said order, the appellant filed an appeal before this Tribunal. The Tribunal by its order dated 07.5.2013 remanded the matter to the adjudicating authority for de novo adjudication after taking into consideration the test reports submitted by the appellant to establish the product cleared by them conforms the (BIS) specification 2796:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that they did not produce any certificate or letter issued by BIS to the effect that EBP manufactured and marketed by HPCL conforms to BIS- 2796:2000 specification. Further, it was alleged that they had not conducted all the tests in their Vashi Terminal; hence, the clearances of EBP do not qualify for exemption under Notification No. 28/2002-CE. 3.3 It is his contention that after the remand of the proceedings by the Tribunal, they have made various submissions in support of their contention that EBP supplied by their Vashi Terminal was conforming to BIS specification 2796:2000, including evidences like test reports dated 01.6.2004 and 05.6.2004 to show that they are eligible for exemption under the relevant notifications. Also, they have submitted that since invoices reflect the composite cum-duty price, element of central excise duty was not shown separately, therefore, provisions of Section 11D are not applicable to their case. However, the learned Commissioner without considering their submissions advanced on behalf of the Appellant confirmed the demand. 3.4 He has submitted that the learned Commissioner has ignored their submission that generally the petroleum products ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omposite price, which is the sale price of petrol and did not show element of duty separately. It is his contention that duty was paid considering 95% of Motor Spirit (by volume) contained in EBP, while invoices for clearance of EBP were prepared showing a composite price, without showing duty element separately. It is his contention that this is a principle of law settled by the Tribunal in a series of cases. In support, he has referred to the judgment in the following cases :- (i) Bharat Petroleum Corporation Ltd. Vs. CCE, Raipur - 2002 (144) ELT 672 (Tri-Del) (ii) Bharat Petroleum Corporation Ltd. Vs. CCE, Nagpur - 2003 (158) ELT 833 (Tri-Mum) (iii) Hindustan Petroleum Corporation Ltd. Vs. CCE, Aurangabad - 2003 (162) ELT 391 (Tri-Mum) 4. Learned AR for the Revenue reiterates the findings of the learned Commissioner. He has submitted that since the appellant has cleared EBP without producing certificate from BIS indicating that it conforms the BIS Standard 2796:2000 as required under the Notification No. 28/2002-CE dated 13.5.2002; benefit of the said notification cannot be allowed. They were required to pay standard rate of duty. Further, he has su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he First Schedule (hereinafter referred to as the First Schedule) to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table; and (b) from so much of the Special duty of excise leviable thereon under the Second Schedule (hereinafter referred to as the Second Schedule) to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (5) of the said Table, subject to the relevant conditions specified in the Annexure to this notification, and referred to in the corresponding entry in column (6) of the said Table : Provided that nothing contained in this notification shall apply to goods falling under sub-heading No. 3605.10 against S. Nos. 65, 66, 67 and 68 of the said Table on or after the 1st day of April, 2002 : Provided further that nothing contained in this notification shall apply to the goods specified against S. Nos. 193, 195, 199 and 200 of the said Table on or after the 1st day of March, 2005. Explanation. - For the purposes of this notification, the rates specified in columns....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as said Schedules), manufactured in and cleared from an oil refinery or cleared from a registered warehouse, intended for use in ethanol blended petrol, that is, a blend, (a) consisting, by volume, of 95% Motor spirit, (commonly known as petrol) and of 5% ethanol; and (b) conforming to Bureau of Indian Standards specification 2796 from so much of the duty of excise leviable thereon under the said Schedules, as is in excess of the duty that would have been leviable on such goods under the said Schedules, if sold by the manufacturer for delivery at the time of removal of such goods or at any other time nearest to the removal of such goods, where the manufacturer and the buyer are not related and the price is the sole consideration. 2. This notification shall remain in force up to and inclusive of the 29th day of February, 2004. Notification No. 15/2003-CE dated 1.3.2003 reads as under: - Exemption to 5% ethanol doped petrol from additional duty of excise levied under Section 111 of the Finance (No. 2) Act, 1998 - In exercise of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st reports indicating that the samples conforms the BIS 2796:2000 specification. 11. In the first round of litigation, this Tribunal remanded the matter to the adjudicating authority to analyze and consider the said two test reports to examine whether the appellants are eligible to the benefit of exemption notification. In the de novo proceeding, the learned Commissioner though considered the certificates but did not accept the same on the ground that since it was conducted in 2004 and the demand was for the period April, 2003 to June, 2004, it is an attempt on the part of the appellant to show that it conforms BIS 2786:2000 specification which is an afterthought and lacks evidentiary value. 12. We do not find merit in the reasoning advanced by the learned Commissioner in rejecting the test reports. The appellant while clearing the EBP from their Vashi Terminal invariably conducted tests on the EBP samples to ascertain its quality and the specification of the product before clearance. Needless to mention the said product is subjected to strict control and orders issued by Central and State Government from time to time viz. Motor Spirit and High Speed Diesel(Regulation of Supp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as in force during the disputed period, which reads as below: "Section 11D. Duties of excise collected from the buyer to be deposited with the Central Government - (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provisions 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 as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government." 16. As stated above, the Vashi terminal receives duty paid Motor spirit from their Refinery and also duty paid ethanol, which was blended in the ratio of 95:5 at the time of clearance from the Vashi unit to the customers in tankers. The price per KL of EBP was similar to the price charged by the appellant for unblended motor spirit to the customers. 17. It is not in dispute that in the invoice the duty paid on motor spirit (....