Custom, Excise & Service Tax Tribunal
M/S. The Indian Oil Corporation Limited vs Commissioner Of Central Excise & ... on 5 March, 2012
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
EXCISE APPEAL NO.E/A/278/2006
(ARISING OUT OF ORDER-IN-ORIGINAL NO.01/COMMR/ADJ/CE/SLG/2006 DATED 16.02.2006 PASSED BY THE COMMISSIONER OF CENTRAL EXCISE, SILIGURI)
FOR APPROVAL AND SIGNATURE OF
SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER
DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
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. THE INDIAN OIL CORPORATION LIMITED
APPELLANT (S)
VERSUS
COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, SILIGURI
RESPONDENT (S)
APPEARANCE:
SHRI BISWAJIT MUKHERJEE, ADVOCATE FOR THE APPELLANT(S) SHRI S.CHAKRABORTY, A.R. (ASSTT. COMMR.) FOR THE REVENUE CORAM:
SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER DR. D.M.MISRA, HONBLE JUDICIAL MEMBER Date of Hearing/Decision: 05.03.2012 ORDER NO Per Shri S.K.Gaule Heard both sides.
2. The Appellant filed this Appeal against the Order-in-Original No.01/COMMR/ADJ/CE/SLG/2006 dated 16.02.06 whereby learned Commissioner has confirmed the demand of duty amounting to Rs.51,06,512/- along with interest, and imposed a penalty of equal amount under Section 11AC of the Central Excise Act 1944, while denying the benefit of Notification No.29/02-CE (as amended) to the Appellant,
3. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture of Low Viscosity Furnace Oil (LVFO). The LVFO was manufactured at the Appellants Digboi Refinery, and that was kept in their Bonded Warehouse at Tinsukia and from there, it was transferred to the Siliguri Bonded Warehouse without payment of duty. The Appellant claimed the benefit of Notification No.29/02-CE which exempts 50% of the duty in case of the goods manufactured at 4 refineries situated in the North-Eastern Part of the country. The Appellant were denied the benefit of the Notification on the ground that they were not directly paying duty at the time of initial clearances from their Bonded Warehouse. Since they were denied the benefit, they were required to pay duty at the time of transferring the goods from Siliguri, they had ultimately paid the full duty at Siliguri. The contention of the Counsel appearing for the Appellant is that the other connected appeal filed by them on the same issue had already been decided in their favour, vide this Tribunals Order No.A-301/KOL/2011 dated 14.09.11.
4. Learned AR for the Revenue reiterated the findings of the lower Adjudicating Authority.
5. We find that this Tribunal vide the Order dated 14.09.11(supra) had decided this issue in favour of the Appellant. The relevant portion of the Order is reproduced hereunder:-
3. Learned Counsel on behalf of the Appellants submitted that exemption has been denied only on the ground that L.D.O. was not received by Budge Budge terminal directly from the refinery. He submits that the very same issue had come up before the Tribunal in their own case and Tribunal in their decision reported in 2010 (251) E.L.T. 121 (Tri.-Bang.) held that benefit of exemption Notification is available even when the clearance is made from a bonded warehouse and even when the warehouse had not received the goods directly from refinery. We find that the decision of the Tribunal relied upon by the learned Counsel is squarely applicable to the facts of the present case and for ready reference we reproduce paragraphs 3 & 4 of the decision of the Tribunal cited above.
3. We have carefully considered the facts of the case and the submissions made by both sides. The Notification No.29/2002, dated 13-5-2002 originally extended concessional rate of duty to clearances of petroleum products from specified refineries. The following explanation was introduced under Notification No.34/2002 dated 21-6-2002 amending the above notification. The explanation reads as follows:
Explanation.
(1) For the removal of doubts, it is hereby declared that the exemption under this notification shall also be available on the said goods if such goods are removed under bond, without payment of the duties of excise specified in column (2) of the said Table, from any of the refineries specified against clauses (a) to (d), to a warehouse and subsequently removed from the said warehouse on payment of fifty percent of such duties.
(2) This Explanation shall have effect as if it had always been the part of this notification."
[Notification No.34/2002-C.E., dated 21-6-2002]
4. We find that the notification as amended is to the effect that petroleum products cleared under bond from any of the specified refineries and received under bond in a warehouse can be cleared on payment of duty at the concessional rate specified in the notification. The obvious intention is to allow exemption to petroleum products originating from the north-eastern refineries. We do not find anything in the notification to deny the exemption if such goods are received under bond in one or more warehouses before they are received in the warehouse from which they are cleared on payment of duty. In the circumstances, we hold that the impugned demand raised for the reason that the LDO removed on payment of duty from the warehouse had not been received directly from the refinery under bond is not sustainable.
4. We also hold that there is nothing in the Notification to deny the exemption if the goods are received under bond in one or more warehouse before they were received in Budge Budge Warehouse. Accordingly we set aside the impugned order and allow the Appeal with consequential relief to the Appellants.
6. In these circumstances, the impugned Order is set aside and the Appeal is allowed.
Dictated and pronounced in the open court.
Sd/- Sd/- CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
EAST ZONAL BENCH: KOLKATA
EXCISE APPEAL NO.E/A/278/2006
(ARISING OUT OF ORDER-IN-ORIGINAL NO.01/COMMR/ADJ/CE/SLG/2006 DATED 16.02.2006 PASSED BY THE COMMISSIONER OF CENTRAL EXCISE, SILIGURI) FOR APPROVAL AND SIGNATURE OF SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER DR. D.M.MISRA, HONBLE JUDICIAL MEMBER
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. THE INDIAN OIL CORPORATION LIMITED APPELLANT (S) VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, SILIGURI RESPONDENT (S) APPEARANCE:
SHRI BISWAJIT MUKHERJEE, ADVOCATE FOR THE APPELLANT(S) SHRI S.CHAKRABORTY, A.R. (ASSTT. COMMR.) FOR THE REVENUE CORAM:
SHRI S.K.GAULE, HONBLE TECHNICAL MEMBER DR. D.M.MISRA, HONBLE JUDICIAL MEMBER Date of Hearing/Decision: 05.03.2012 ORDER NO Per Shri S.K.Gaule Heard both sides.
2. The Appellant filed this Appeal against the Order-in-Original No.01/COMMR/ADJ/CE/SLG/2006 dated 16.02.06 whereby learned Commissioner has confirmed the demand of duty amounting to Rs.51,06,512/- along with interest, and imposed a penalty of equal amount under Section 11AC of the Central Excise Act 1944, while denying the benefit of Notification No.29/02-CE (as amended) to the Appellant,
3. Briefly stated the facts of the case are that the Appellant are engaged in the manufacture of Low Viscosity Furnace Oil (LVFO). The LVFO was manufactured at the Appellants Digboi Refinery, and that was kept in their Bonded Warehouse at Tinsukia and from there, it was transferred to the Siliguri Bonded Warehouse without payment of duty. The Appellant claimed the benefit of Notification No.29/02-CE which exempts 50% of the duty in case of the goods manufactured at 4 refineries situated in the North-Eastern Part of the country. The Appellant were denied the benefit of the Notification on the ground that they were not directly paying duty at the time of initial clearances from their Bonded Warehouse. Since they were denied the benefit on the ground and accordingly, they were required to pay duty at the time of transferring the goods from Siliguri, they had ultimately paid the full duty at Siliguri. The contention of the Counsel appearing for the Appellant is that the other connected appeal filed by them on the same issue had already been decided in their favour, vide this Tribunals Order No.A-301/KOL/2011 dated 14.09.11.
4. Learned AR for the Revenue reiterated the findings of the lower Adjudicating Authority.
5. We find that this Tribunal vide the Order dated 14.09.11(supra) had decided this issue in favour of the Appellant. The relevant portion of the Order is reproduced hereunder:-
3. Learned Counsel on behalf of the Appellants submitted that exemption has been denied only on the ground that L.D.O. was not received by Budge Budge terminal directly from the refinery. He submits that the very same issue had come up before the Tribunal in their own case and Tribunal in their decision reported in 2010 (251) E.L.T. 121 (Tri.-Bang.) held that benefit of exemption Notification is available even when the clearance is made from a bonded warehouse and even when the warehouse had not received the goods directly from refinery. We find that the decision of the Tribunal relied upon by the learned Counsel is squarely applicable to the facts of the present case and for ready reference we reproduce paragraphs 3 & 4 of the decision of the Tribunal cited above.
3. We have carefully considered the facts of the case and the submissions made by both sides. The Notification No.29/2002, dated 13-5-2002 originally extended concessional rate of duty to clearances of petroleum products from specified refineries. The following explanation was introduced under Notification No.34/2002 dated 21-6-2002 amending the above notification. The explanation reads as follows:
Explanation.
(1) For the removal of doubts, it is hereby declared that the exemption under this notification shall also be available on the said goods if such goods are removed under bond, without payment of the duties of excise specified in column (2) of the said Table, from any of the refineries specified against clauses (a) to (d), to a warehouse and subsequently removed from the said warehouse on payment of fifty percent of such duties.
(2) This Explanation shall have effect as if it had always been the part of this notification."
[Notification No.34/2002-C.E., dated 21-6-2002]
4. We find that the notification as amended is to the effect that petroleum products cleared under bond from any of the specified refineries and received under bond in a warehouse can be cleared on payment of duty at the concessional rate specified in the notification. The obvious intention is to allow exemption to petroleum products originating from the north-eastern refineries. We do not find anything in the notification to deny the exemption if such goods are received under bond in one or more warehouses before they are received in the warehouse from which they are cleared on payment of duty. In the circumstances, we hold that the impugned demand raised for the reason that the LDO removed on payment of duty from the warehouse had not been received directly from the refinery under bond is not sustainable.
4. We also hold that there is nothing in the Notification to deny the exemption if the goods are received under bond in one or more warehouse before they were received in Budge Budge Warehouse. Accordingly we set aside the impugned order and allow the Appeal with consequential relief to the Appellants.
6. In these circumstances, the impugned Order is set aside and the Appeal is allowed.
Dictated and pronounced in the open court.
(D.M.MISRA) (S.K.GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
DUTTA/
(D.M.MISRA) (S.K.GAULE)
JUDICIAL MEMBER TECHNICAL MEMBER
DUTTA/
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EXCISE APPEAL NO.E/A/278/2006