M/S Indian Oil Corporation Ltd vs C.C.E. Raipur

[Arising out of Order-in-Appeal No. Commissioner/RPR/44/2005 dated 28.10.2005 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].

For approval and signature:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s Indian Oil Corporation Ltd. .Appellants

Vs.

C.C.E. Raipur .Respondent

Appearance:

Ms. Tuhina Sinha, Advocate for the Appellants

Shri M S Negi, DR for the Respondent

CORAM:

Hon'ble Shri Rakesh Kumar, Member (Technical)

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 19.02.2015

FINAL ORDER NO. 50448/2015EX (DB)

Per Ashok Jindal:

The short issue following in the matter is that whether appellants are required to pay duty in accordance with the provision with Section 11(D) of the Central Excise Act, 1944 or not.

2. The facts of the case are that the appellant are depots of IOCL and they are receiving duty paid petroleum products from refineries. Thereafter, they are selling goods on the price fixed by the Government of India. Revenue is of the view that as the price at which goods are sold from the depot are higher than the goods cleared from the refineries and goods are duty paid. Therefore, excess duty collected by the appellant at depots is required to be paid to the department under Central Excise Act, 1944. In these set of facts the show cause notice was issued to the following six assesses:

(i) M/s. Indian Oil Corporation Ltd., Bhopal,

and to the bulk petroleum depots

(ii) Bhilai Depot, M/s. Indian Oil Corporation Ltd.

Bhilai

(iii) Bilaspur Depot, M/s. Indian Oil Corporation Ltd.

Bilaspur

(iv) Bishrampur Depot, M/s. Indian Oil Corporation Ltd.

Sarguga

(v) Jayant Depot, M/s. Indian Oil Corporation Ltd.

Sidhi

(vi) Satna Depot, M/s. Indian Oil Corporation Ltd.

Satna

3. The show cause notice was adjudicated and demand under section 11(D) of the Act was confirmed. Aggrieved from the said orders appellants are before us.

4. The Ld. Counsel for the appellant submits that as appellants are not manufacturer or producer of the goods and as per section 3 of the Central Excise Act, 1944 duty is payable by the manufacturer or producer of the goods. Therefore, they are not liable to pay duty. To support this contention she relied on the decision of the Larger Bench of this Tribunal case of Hindustan Petroleum Corporation Ltd. Vs. C.C.E. Chandigarh-2007 (279) E.L.T. 367 (Tri-LB). She also relied on their own case reported in 2014 (302) E.L.T. 234 (MP).

5. On the other hand Ld. AR submits that in this case duty has been demanded from IOCL. Therefore, IOCL is liable to pay duty under section 11(D) of the Act. He also submits that as per para 6 of the show cause notice the duty is required to be recovered from IOCL. Therefore, IOCL is required to pay duty.

6. Heard the parties. Considered the submissions.

7. We have gone through the show cause notice. Para 6 of which is reproduced here as under:

The details of such excess amounts of central Excise duty collected by BPDs of IOC was not paid to the credit of Central Government have been calculated and shown in Charts Annexed as Annexure-E. Scrutiny of sample invoices provided by ICO in respect of the BPDs of IOC clearly show the recovery of amount in the form of increased duty separately. Thus, it appears that the IOC had recovered an amount in excess of the duty paid and had not deposited the same to the credit of Central Government.

8. We have gone through the Annexure to the Show cause notice which says that Show Cause Notice has been issued to the depots not to the refineries, which is also reproduced here as under:

S.No. Name of the Depot of M/s. IOC falling in Raipur commissionerate

(i) Bhilai Depot, M/s. Indian Oil Corporation Ltd.

Bhilai

(ii) Bilaspur Depot, M/s. Indian Oil Corporation Ltd.

Bilaspur

(iii) Bishrampur Depot, M/s. Indian Oil Corporation Ltd.

Sarguga

(iv) Jayant Depot, M/s. Indian Oil Corporation Ltd.

Sidhi

(v) Satna Depot, M/s. Indian Oil Corporation Ltd.

Satna

9. Therefore, the contention of the Ld. AR is baseless and not acceptable. We further find that as held by larger bench of this Tribunal in the case of Hindustan Petroleum Corporation Ltd. (Supra), duty is payable by manufacturer or producer of the goods and being appellant before is not a manufacturer or producer of the goods, therefore not liable to pay duty under section 11(D) of the Act. Same has been affirmed by the Honble High Court of Madhya Pradesh in appellants own case. In these circumstances, we hold that appellant is not required to pay duty under section 11(D) of the Act.

10. Consequently impugned order is set aside. Appeal is allowed with consequential relief, if any.

(Dictated and pronounced in the open court)

(Ashok Jindal) (Rakesh Kumar) Member (Judicial) Member (Technical)

Bhanu

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E/434/2006-EX(DB)