TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1407
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....y the Revenue is considered and accordingly, the Registry is directed to incorporate the following changed name and address of the respondent in the appeal records for the purpose of disposal of the appeal:- "Commissioner of Central Goods Service Tax & Central Excise, Navi Mumbai Commissionerate, 16th Floor, Satra Plaza, Sector -19D, Palm Beach Road, Vashi, Navi Mumbai - 400 705". 3.1 Brief facts of the case, leading to this appeal, are summarized herein below: 3.2. The appellants herein is engaged inter alia, in the manufacturer of petroleum products by refining of crude petroleum and marketing of various finished products viz., High-Speed Diesel (HSD), Motor Sprit (MS), Superior Kerosene Oil (SKO), Aviation Turbine Fuel (ATF), Lube Oil etc. by classifying the aforesaid products under Chapter 25, 27 of the First Schedule to the Central Excise Tariff Act, 1985. The appellants are registered taxpayers holding Central Excise Registration No. AAACH1118BXM010 for manufacture of aforesaid excisable goods on payment of appropriate Central Excise duty and for compliance with Central Excise statue. 3.3 The excisable goods viz., HSD, MS and SKO manufactured at Mahul refinery are transp....
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.... with Rule 25 ibid vide order dated 31.03.2015. Feeling not satisfied with the impugned order, the appellants had preferred this appeal before the Tribunal. 4.1 Learned Advocate appearing for the appellants had submitted that the activity of mixing of SKO with MS or HSD is happening because of technical necessity, under such activity does not amount to manufacture in terms of Section 2(f) of the Central Excise Act, 1944 and hence the demand of duty is not sustainable. Further, the appellants though cleared the SKO for the purpose of PDS availing the duty exemption benefit, for the quantum of inter mixed product SKO, they have been discharging the appropriate duty at the rate applicable for clearance of industrial SKO. Therefore, he submitted that demand of duty on such inter mixed SKO, as though such products are MS/HSD is not legally sustainable in view of the judgements of the Hon'ble Supreme Court in the following cases: (i) State of Hariyana Vs. Dalmia Dadri Cement Ltd. - 2004 (178) E.L.T. 13 (S.C.) (ii) BPL Display Devices Ltd. Vs. Commissioner of Central Excise, Ghaziabad - 2004 (174) E.L.T. 5 (S.C.) 4.2 He further stated that the circular dated 22.04.2022 issued by CBE....
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.... to address the above issue, we would like to refer the relevant legal provisions contained in Central Excise Act, 1944 and Central Excise Rules, 2002 as it existed during the disputed period. "Central Excise Act, 1944 Chapter II Levy and Collection of Duty Duty specified in the First and Second Schedule to the Central Excise Tariff Act, 1985 to be levied. Section 3. (1) There shall be levied and collected in such manner as may be prescribed (a) a duty of excise to be called the Central Value Added Tax (CENVAT) on all excisable goods (excluding goods produced or manufactured in special economic zones) which are produced or manufactured in India as, and at the rates, set forth in the First Schedule to the Central Excise Act, 1985 (5 of 1986): xxx xxx xxx xxx Provided that the duty of excise which shall be levied and collected on any excisable goods which are produced or manufactured by a hundred per cent export oriented undertaking and brought to any other place in India, shall be an amount equal to the aggregate of the duties of customs which would be leviable under the Customs Act, 1962 (52 of 1962) or any other law for the time being in force, on like goods produced....
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.... of removal", in respect of the excisable goods removed from the place of removal referred to in sub-clause (iii) of clause (c), shall be deemed to be the time at which such goods are cleared from the factory; (d) "transaction value" means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of, the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods." Central Excise Tariff Act, 1985 "Duties specified in the First Schedule and the Second Schedule to be levied Section 2. The rates at which duties of excise shall be levied under the Central Excise Act, 1944 (1 of 1944) are specified in the First Schedule and the Second Schedule."....
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....at which 5% and 90% by volume (including losses) distil; (b) "natural gasoline liquid (NGL)" is a low-boiling liquid petroleum product extracted from Natural Gas; (c) "superior kerosine oil (SKO)" means any hydrocarbon oil conforming to the Indian Standards Specification of Bureau of Indian Standards IS : 1459 : 1974 (Reaffirmed in the year 1996); (d) "aviation turbine fuel (ATF)" means any hydrocarbon oil conforming to the Indian Standards Specification of Bureau of Indian Standards IS : 1571 :1992 : 2000; (e) "high speed diesel (HSD)" means any hydrocarbon oil conforming to the Indian Standards Specification of Bureau of Indian Standards IS : 1460 : 2005; xxx xxx xxx xxx Chapter Heading Description of goods (1) (2) 2710 Petroleum oils and oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous minerals, these oils being the basic constituents of the preparations; waste oils Petroleum oils and oils obtained from bituminous minerals (other than crude) and preparations not elsewhere specified or included, containing by....
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.... at the time of removal of the goods. As regards MS and HSD, the duty was paid on the transaction value. As regards SKO, since the same was not sold but meant for Public Distribution System (PDS), the duty was paid on the prevailing price of SKO on the basis of sale price prevailing for SKO for industrial purpose, which is higher than the price of SKO sold under PDS. Therefore, the correct price was adopted by the appellant while clearing the intermix quantity of SKO. The sole reliance of the Adjudicating Authority is on the Board's Circular dated 22.02.2002. As there is no dispute in classification or the valuation of goods involved in the present case, such circular issued for the purpose of uniformity in assessment of excise duty cannot be applied in the present circumstances of the case. 9.1 We find that the dispute in the identical set of facts in the case of M/s Indian Oil Corporation Ltd., Vs. Commissioner of Central Excise in Service Tax, Guwahati (supra), the Tribunal have held that duty on interface quantity of SKO cannot be demanded the rates applicable for HSD or MS. The relevant paragraphs of order of the Tribunal in the above case is extracted and given below: "8. ....