M/s. Hindustan Petroleum Corpn. Versus CGST, CE, Jabalpur
Central Excise
2018 (10) TMI 692 – CESTAT NEW DELHI – 2019 (369) E.L.T. 847 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 4-10-2018
Excise Appeal No. 51579 of 2018 – FINAL ORDER No. 53063/2018
Central Excise
Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Shri Amit Jain, Shri Rahul Tangri, Advocates for the Appellants
Shri Ubhap Sangraj, AR for the Respondent
ORDER
Per C L Mahar:
The brief facts of the matter are that the appellant is a registered depot of M/s. Hindustan Petroleum Corpn. Ltd. During the course of audit, it has been found that the appellants have collected Central Excise duty from its buyers in excess of what has been actually paid on the same goods at the time of removal of excisable goods at the factory gate. The department has issued Show cause notice under Section 11D of the Central Excise Act, 1944 covering two periods from 2006-2007 to 2010-2011 wherein
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
d by them claiming the same as Central Excise duty under section 11D on the following grounds:
(i) It has been contended by learned advocate that the provisions of section 11D of Central Excise Act, 1944 has been amended since 10.5.2008 wherein any person who collects an amount in excess of Central Excise duty need to deposit the same with the Central Government. However, before the amendment of section 11D, the provisions of this section were relevant only with regard to the manufacturer of excisable goods and since the appellant is only a depot, and not being manufacturer, the relevant provisions of section 11D are applicable only after 10.5.2008. It has therefore, been prayed by the learned advocate that the demand prior to 10.5.2008 in the show cause notice dated 1.5.2012 need to be dropped on this very ground. With regard to the post 10.5.2008 demand is concerned, it has been submitted that the excess amount collected by them has been returned to the buyers of their excisable pr
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
11A of Central Excise Act. Most of the amount of demand, in the above mentioned two show cause notices is hit by period of limitation. The learned advocate has also relied upon the decision of this Tribunal in the case of CCE, Jaipur vs. Vinayak Agrotech Ltd. [2012 (284) ELT 237 (Tri-Del)] wherein it has been held that if any amount collected by them in excess of the Central Excise duty paid and if same amount has been returned back to the customers, the demand under section 11D of Central Excise Act is not maintainable.
3. We have also heard learned DR who has impressed that, firstly; the section 11D requires that any person who is liable to pay duty under this Act, who has collected any amount in excess of the duty leviable under Central Excise duty, same cannot be retained by the person who has collected it and same has to be returned and deposited with the Central Government as per the provisions of section 11D. It has also been contested by the learned DR that section 11D does n
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
see depot is primarily an extension of M/s. HPCL and they have admittedly collected certain amount in the name of Central Excise duty in excess of the amount of excise duty paid by them at the time of clearance of various excisable goods to the appellant assessee depot. The basic ground on which the learned advocate has tried to defend themselves from depositing back the excess amount collected by them under section 11D of Central Excise Act, is primarily two fold. Firstly, that the provisions of section 11D of Central Excise Act, 1944 are not applicable in their case for a period prior to 10.5.2008. Secondly, the excess amount collected by them in the name of Central Excise duty has already been returned back by them to their customers. Before proceeding further in analyzing the issue, it will be better to reproduce the provisions of section 11D as they existed prior to 10.5.08 and post 10.5.08.
Provisions of Section 11D as applicable before 10.5.2008:
“Section 11 D Duties of excis
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
holly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government.”
6. It can be seen that section 11D(i) as it existed prior to 10.5.2008 provided that any person who is liable to pay duty under the Central Excise Act or rules, made thereunder need to pay back the excess amount collected by them, thus it appears on plain reading that it primarily covers the producer or manufacturer of excisable goods or the person storing such goods in a warehouse who pays the duty on excisable goods at the time of removal of such goods. In this regard, we are of view that the submissions made by the learned advocate that since they are not liable to pay duty on the goods sold by them and therefore, they are not covered by the provisions of section 11D for a period prior to 10.5.2008, is not acceptable to us since we find that the depot of manufacturer assessee who is M/s. Hindustan Petroleum Corpn. L
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ecause the depot has taken a separate registration as a first stage dealer does not mean that they are not part and parcel of manufacturer assessee namely M/s. Hindustan Petroleum Corporation Ltd.
8. Thus in view of the above, we feel that provisions of section 11D even prior to 10.5.2008 are applicable in case of appellant assessee and they are legally bound to deposit back the excess amount collected by them from their customers in the name of Central Excise duty. We tried to distinguish our views from the Citations given by the learned advocate in the situation. This aspect and overall scheme of place of removal as provided in the Central Excise Act, has not been considered while deciding the relevance of provisions of section 11D of the Central Excise Act 1944 in cases of prior to 10.5.2008. We are also of the view that while interpreting a particular section of the Act we need to consider the overall scheme of the provisions of that act, for reaching the balanced view of the prov
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
it to their customers. Seen from this angle, it is not a proper return of the excess collected amount which was in the name of Central Excise duty. Thus, we feel that excess amount collected in the name of Central Excise duty by the appellant-assessee does not stand returned back to their customers and therefore, same need to be deposited with the Central Government.
11. Now coming to the period of limitation, learned advocate for the appellant argued that the demand under section 11D is hit by period of limitation as the Hon'ble Madras High Court held in the case of M/s. Gem Cables and Conductor Ltd. vs CCE Hyderabad (supra) that provisions of section 11A are also applicable to Section 11D. A plain reading of section 11D makes it evidently clear that no period of limitation has been prescribed under this particular section. The case which has been referred by learned advocate is a case where the provisions of section 11A along with section 11D of the Central Excise Act, 1944 were inv
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =