Customs, Excise and Gold Tribunal - Tamil Nadu
M/S. Hindustan Petroleum Corporation ... vs Commissioner Of Central Excise, ... on 19 June, 2001
ORDER S.L. Peeran, Member (J)
1. Both the stay applications and the appeals arise against two different orders in original but passed by the Commissioner of Central Excise, Visakapatnam as per the order numbers noted above. As the issue lies in a short compass and is covered by the two decisions of this Tribunal rendered in the appellants' own case vide final Order No. 1710-1745/2000 dt. 30.11.2000 which has followed the case of IOC vs. CCE, Viag. Vide final order No. 302-308/2001 stay order No. 74 to 80/2001 dt. 10.1.2001, therefore, while granting waiver of pre deposit and stay recovery of the duty amount confirmed in both the orders in original, we take up both the appeals for final disposal as per law.
2. In the impugned order, the Revenue has proceeded against the Appellants for recovering the duty calculated in respect of the imported goods as detailed in the order under section 11D (1) of the Central Excise Act 1944. The Appellants' contention before the lower authority was that the show cause notice was not sustainable and the recovery under the proviso to Section 11D of the act cannot be effected in view of the retrospective amendment brought about in the Finance Act, 2000 by which it has been clarified that Section 11D would be applicable only to the excisable goods and not to imported items. In view of this amendment the Appellants' claim that the show cause notice and confirming the demand is not sustainable. The Ld.Counsel files both the orders and submits that this very issue was taken up at the time of hearing stay applications and taking note of the submissions made and also the amendment brought out retrospectively in the Finance Act 2000, the Bench remanded the matter to the original authority for de novo consideration to redecide the case in the light of the amendment brought out under section 11D of the CEA.
3. Heard Ld.DR who reiterates the submissions of the Department.
4. On a careful consideration of the submissions made by both side, we notice that in the Appellants' own case the very issue was considered and 36 appeals of the Appellants were taken up together for consideration along with the stay applications. The matters were disposed of vide final order No. 1710-1745/2000 dt. 30.11.2000 allowing the appeal by way of remand as per the findings recorded in para 9 which is reproduced below.
"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 exigible goods which have been cleared from the premises, on which duty demand can be raised. This should be determined on out turn basis. If the out turns are prepared daily, this formula should be applied on daily basis and if it is monthly out turn, it should be on monthly basis.
(b) As regards the assessable value, we respectfully follow the decision in the case of Bharat Petroleum Corporation - reported in 199 (108) ELT 402 and would expect the Commissioner also to re-determine the assessable value in the light of the decision of the Tribunal(supra) in the proceedings which we intend to remand for re-determination of the quantum of duty.
(c) As regards retail service charges, we are in agreement with the learned Sr Counsel. They are in the nature of retail cost incurred after clearance of the goods and are therefore, not includible under Section 4 of the CE Act, 1944.
(d) As regards the service charge liability in transit the issue may be settled as per the Board's instructions as prescribed therein which should be as per the re-adjudication to be conducted.
(e) As regards the demand under Section 11D, we are in agreement with the learned Counsel that by amendment effected from 20.9.99, this Section is applicable only to excisable goods and is applicable only to the assessee and/or a person registered and is required to pay duty as prescribed under Rule 7 of the Central Excise Rules, and the amount of duty under this, cannot be recovered on imported petroleum product. Therefore, the matter of determination of the amount under Section 11D is also required to be re-determine as per Section 11D now introduced by Finance Act, 2000.
(f) As regard imposition of penalty we set aside the order since we have come to a conclusion that the order is required to be set aside the remanded for de novo determination of the quantum of assessable value and thereafter to pay duty as arrive at, we refrain from giving any finding on penalty and direct that levy of penalty itself be considered after giving opportunity of hearing to the appellants, as to why penalty should be imposed in this case, considering their reply and then determine the quantum thereof.
(g) The pre-deposit made, should be dealt with as per the instructions of the Govt. of India.
5. We notice that this order was followed at the time of hearing the stay application in the case IOC vs. CCE. Vizag. in the final order No. 302 - 308/2001 dt. 10.1.2001. Therefore, keeping in view, the judicial discipline, and respectfully following the two aforesaid decisions, we set aside the impugned orders and remand the matter to the original authority for de novo consideration in the light of the orders already extracted above. The Appellants shall be given an opportunity of being heard and they shall be permitted to file written submission and evidence if they so desire. After considering the same a speaking order shall be passed by the Commissioner by taking up both the matters together. Thus both the appeals are allowed by way of remand.
(order dictated and pronounced in the open court)