TaxTMI 
TaxTMI 
2000 (11) TMI 275
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....ed and indigenous petroleum products under D-3 intimation filed by them and indigenous non duty paid product on AR-3A and also duty paid petroleum products from other manufacturers of the same appellants Company and/or other Petroleum Companies - what are called by them as 'bridging' arrangements. The imported petroleum products and the indigenous petroleum products are stored in same tanks and are being accounted for under FIFO system of material management accounting i.e. first in first out basis. The goods received under the 'bridging' arrangements are entered in the Company's own record while the imported goods received under D-3 intimation and the indigenous goods received under AR-3A are entered in the RG-1 Register maintained under the Central Excise Rules. The appellants are transferring the duty paid goods received under the 'bridging' arrangements without entering the goods physically into the tanks. These goods are normally received in the road tank lorries and are being transferred to their customers under invoice being issued by the assessee. The imported goods and the indigenous non duty paid goods are also cleared likewise under the same series of invoices by the ass....
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....equired under Sub-rule (12) of Rule 173C of Central Excise Rules, 1944, to declare the a.v. of the goods on the invoice or like documents prepared for clearances of goods. Such value shall be the value as defined under Sec. 4 of CE & Salt Act, 1944, under which the assessees are required to declare the value on which Excise duty is payable and such value shall be "normal price, thereof, that is say, the price at which such goods are ordinarily sold to a buyer in the course of whole sale trade for delivery, at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale" : (i) The assessees were clearing the goods from 1-3-94, paying Excise duty on ad valoram basis, consequent to union budget 1994-95. (ii) Verification of invoices, cash memoranda and ICCR (invoice cum cash receipt) of the assessee reveal that they have been showing the price of the goods per Kilo Litre. This price is inclusive of Excise duty. To this cum-duty price sale tax at an applicable rate is added. It is observed that they also give Dealer's Commission ....
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....nbsp; The assessees during the course of their statement dated 3-10-1994 have stated that the difference in the quantities between Out Turn Statement and invoice have emanated due to the following reasons :- (i) Duty paid stocks are being taken into their premises and invoices raised by them for such duty paid stocks have inflated the quantity, and (ii) Fluctuations in the atmospheric temperature. The assessee has not produced permission if any obtained by them to receive, store and deal with such duty paid stocks and they have not submitted any such record under Rule 5A of CE Rules, 1944 any They have also explained that the excess amount which was collected by them was due to :- (i) Railway Freight recoverable at the rates existing as 1985. The difference is between the actual freight and the freight recovered thru prices are subsidised thru MOP. (ii) Actual siding shunting charges at the loading point and at the destination as per Railways. (iii) ....
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....mands in this case and even on the other issues, he submitted that they are covered by the decision of this very Bench in the case of Bharat Petroleum Corporation reported in 1999 (108) E.L.T. 402 which he submitted, has been appealed to the Hon'ble Apex Court by the Revenue but no stay has been granted and therefore, was a good law to be applied in their case. He further submitted that in fact the learned adjudicator has also come to a finding that the deduction on account of freight charges, transport charges, freight and taxes was eligible but could not substantiated before us. He submitted that documents are available and the matter may be remanded back to the lower authority to reconsider the documents which are available with the appellants to substantiate the quantum of deduction as determined by the learned Commissioner and the eligibility as per the CEGAT decision relied upon. (d) As regards the Section 11D demand being made for the period 1/97 to 4/97 he drew our attention to the amendment to Section 11D effected by the Finance Act, 2000 retrospectively and submitted that this amendment has made a major change in the liability ....
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.... aware as to whether any stay has been granted or not. But he submits that the final decision has not come. Therefore except for the service station charges and the question of loss in transit and wastage, the duty has to be determined as per the Board's formula for each individual product. He also drew our attention to para 33 of the findings on the penalty and submitted that the Commissioner has found the entire efforts by the appellants to evasion of duty under the mask of law and therefore, penalty imposed is justified. 8.The learned Sr. Counsel in the rejoinder submitted that as regards the submissions on transit loss, wastage beyond the prescribed limit have been the matter of individual adjudication and in the present case, there is no claim of that kind. As regards the service charges, these charges are in the nature of post clearance cost and are not includible in the assessable value. 9.We have considered the submissions and the material on record and find that :; (a) As regards the demand on the 'quantum formula' suggested by the learned Sr. Counsel is rational and reasonable formula to determine the quantum of excigible....