Hindustan Petroleum Vs. Cce

Hindustan Petroleum vs Cce

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi Decided Jun 06, 2007

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Citation: sooperkanoon.com/45629
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Delhi
Judge: N T C.N.B., P Das
Decided On: Jun 06, 2007
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

Hindustan Petroleum

Advocate Shri. A.M. Setalwad

Respondent

Cce

Legal References

Reported In: (2007)(120)ECC399

Excerpt

.....has been directed to make deposit in terms of section 11d of the central excise act 1944.3. it is noted that the same dispute between the parties had came before this tribunal, and we held in favour of the appellant .4. there is no dispute that the facts in the present case are the same as the facts in the case covered by our earlier order. we may note the earlier order: 2. the matter was argued at length by shri a.m. setalwad, learned counsel for the appellants and shri m.k. gupta, learned jt. c.d.r. for the revenue. after hearing rival submissions and perusal of case records, we find that the short point is whether section 11d is applicable in the instant case. section 11d requires that "every person who is liable to pay duty under this act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the central government." the main ingredients of this section are that a person should have collected an amount (in excess of the duty assessed) in any manner as representing duty of excise from the buyer of such goods. in the instant case, we find that only a composite price under the administered pricing mechanism has been charged from the buyers under relevant invoices. we do not find any amount has been charged representing the same as duty of excise. therefore, one of the main ingredient to attract section 11d is lacking in this case. 3. in view of above, since the depot of the hpcl has only recovered from the buyer the amount fixed under the administered pricing mechanism without collecting any amount representing the same as duty of excise, we are of the view that section 11d is not attracted in this case. as such, we set aside the impugned order and allow the appeal.5. the issue remains covered in favour of.....

Full Judgment

2. Duty demand has been made under the impugned orders on the ground that the appellant had realised more duty of excise than had been remitted with the authorities. Based on this finding, the appellant has been directed to make deposit in terms of Section 11D of the Central Excise Act 1944.

3. It is noted that the same dispute between the parties had came before this Tribunal, and we held in favour of the appellant .

4. There is no dispute that the facts in the present case are the same as the facts in the case covered by our earlier order. We may note the earlier order: 2. The matter was argued at length by Shri A.M. Setalwad, learned Counsel for the appellants and Shri M.K. Gupta, learned Jt. C.D.R. for the Revenue. After hearing rival submissions and perusal of case records, we find that the short point is whether Section 11D is applicable in the instant case. Section 11D requires that "every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government." The main ingredients of this Section are that a person should have collected an amount (in excess of the duty assessed) in any manner as representing duty of excise from the buyer of such goods. In the instant case, we find that only a composite price under the administered pricing mechanism has been charged from the buyers under relevant invoices. We do not find any amount has been charged representing the same as duty of excise. Therefore, one of the main ingredient to attract Section 11D is lacking in this case.

3. In view of above, since the depot of the HPCL has only recovered from the buyer the amount fixed under the administered pricing mechanism without collecting any amount representing the same as duty of excise, we are of the view that Section 11D is not attracted in this case. As such, we set aside the impugned order and allow the appeal.

5. The issue remains covered in favour of the assessee by the aforesaid order. Following that order, these appeals are allowed with consequential relief, if any, to the appellant.

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Delh... Same Parties Hindustan Petroleum vs Cce Same Subject Service Tax Same Judge N T C.N.B., P Das

Service Tax Excisable goods Duty of excise Every person set aside A person Has been