Commissioner of C. Ex., Meerut vs Bharat Petroleum Corporation Ltd.

This appeal, by the revenue, u/s 35L(b) of the Central Excise Act, 1944 (for short, "the Act") is directed against Final Order No. 455/2002-A dated 25th September 2002 2003 (85) ECC 36 passed by the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, as it existed at the relevant time, (for short "the Tribunal"). By the impugned order, the Tribunal has allowed the appeal preferred by the Assessee against the order, dated 25th October 2001, passed by the Commissioner of Central Excise, Meerut, confirming a demand of Rs. 36,91,550.47 u/s 11D read with Section 11A of the Act, along with equivalent amounts of penalty u/s 11AC and interest u/s 11AB of the Act.

The short legal question before the Tribunal was whether the Assessee, being only a "dealer" and not a "manufacturer" was liable to pay Excise duty u/s 11D of the Act?

Accepting the plea of the Assessee that the amendment of Sub-section (1) of Section 11D of the Act, with retrospective effect from 20th September 1991, by Section 103 of the Finance Act, 2000, had no application to the period in question, the Tribunal held as follows:

There is no dispute before us that demand sustained by the Commissioner was in respect of the goods which were not manufactured by the Appellant. Before the Andhra Pradesh High Court the constitutional validity of Section 11D, before its amendment was under challenge alongwith other provisions. In order to uphold the constitutionality of the provisions the High Court read down the expression "every person' in Sub-section (1) of Section 11D as the manufacturer/producer as also the expression 'every person' appearing in Section 28B of the Customs Act as the importer. It was the above view that has been expressed by this statutory amendment u/s 103 of the Finance Act 2002 with retrospective effect from 20-9-91. In the present case, we are concerned with the demand for a period from July 1997 to August 2000. Under these circumstances, the Appellant's contentions are only to be accepted. No demand can be raised against the Appellant u/s 11D as it is not the manufacturer of the concerned goods. In the result, we set aside the impugned order and allow the appeal.

Mr. Arijit Prasad, Learned Counsel appearing on behalf of the revenue, has vehemently submitted that having collected the Excise duty from the customers, on account of fluctuation in rates of the petroleum products on the stocks lying at various depots, the Assessee cannot deny its liability to deposit the said amount with the excise department. He asserts that the clearances made by the Assessee from its depots were clearly covered u/s 4(3)(c)(iii) of the Act and, therefore, they were liable to pay the differential duty to the credit of the Central Government.

Mr. Joseph Vellapally, learned Senior Counsel appearing for the Assessee, on the other hand, submits that apart from the fact that Section 4, which is now sought to be invoked, was substituted w.e.f. 1st April 2000, the period with which we are not concerned with in the present appeal, the plea in relation to Section 4(3)(c)(iii) was never raised by the revenue before the Tribunal. It is argued that the sole issue which was canvassed by the revenue before the Tribunal was only in relation to the liability of the Assessee u/s 11D of the Act. He has further submitted that similar appeals, in the case of the Assessee itself, were decided by the Tribunal, Mumbai bench, against the revenue. The special leave petitions (Nos. 5807-5811/2004), preferred by the revenue against the said orders were dismissed vide order dated 26th July 2004.

In our opinion, apart from the fact that in view of the period involved in the present appeal, viz. July 1997 to August 2000, there is no infirmity in the impugned order passed by the Tribunal on merits, the present appeal is otherwise not maintainable u/s 35L(b) of the Act as it does not involve determination of any question having relation to the rate of duty of Excise or to the value of goods for the purpose of assessment.

Resultantly, the appeal, being bereft of any merit, is dismissed, with no order as to costs.