TMI Blog2012 (4) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... the depots or consignment agent’s premises or any other premises. Show cause notice itself mentions that the 6326120 litres of HSD in respect of which the appellant are alleged to have recovered an amount of Rs. 66,73,108/- as representing excise duty in excess of the duty actually paid, had been received from Koyali and Manmad. The show cause notice also refers to letter dated 15-2-2000 from Manager (Finance) of the appellant to Superintendent (Preventive), Division-I, Bhopal. A perusal of this letter shows that the HSD, in question, had been received from IOC Koyali and Manmad terminal of BPCL. Since it is IOCL, Koyali and BPCL, Manmad which had cleared the pre-budget stock of HSD, in question, on payments of duty at pre-budget rates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,108/- collected from the customers as representing AED and Basic Excise Duty in respect of post-budget HSD Sales, is recoverable from the appellant under Section 11D of the Central Excise Act, 1944. On this basis, a show cause notice dated 28-1-2004 was issued to the appellant which was adjudicated by the Commissioner, Central Excise, Bhopal vide order-in-original dated 24-11-2004, by which the demand of Rs. 66,73,108/- was confirmed against the appellant under Section 11D read with Section 11A of the Central Excise Act, 1944. Against this order of the Commissioner, this appeal has been filed. 2. Heard both the sides. 3. Shri R.K. Hasija, Advocate, the learned Counsel for the appellant, pleaded that in terms of the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erut v. Bharat Petroleum Corporation Ltd. reported in 2011 (272) E.L.T. 654 (S.C.), that the fact that the goods, in question, were duty paid and were received from Koyali and Manmad stands admitted in the letter dated 25-12-1999 relied upon in the show cause notice, that the appellant vide letter dated 15-2-2000 to Superintendent (Preventive) Division-I, Bhopal had informed that the pre-budget stock of HSD as on 28-2-1999, had come from IOCL, Koyali and BPCL, Manmad, that this letter referred to in the show cause notice has not been considered by the Commissioner in the impugned order, that the demand raised vide show cause notice dated 28-1-2004 is time-barred, as though no time limit has been prescribed in Section 11D, the demand, if any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 thereudner 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. 6.1 Thus the provisions of Section 11D(1) are applicable to a person who - (a) is liable to pay duty in respect of certain excisable goods; and (b) has paid the duty assessed or determined in respect of such goods. This person, obviously, is the manufacturer of the goods. The act of such manufacture which attracts the provisions of this sub-section is recovering any amount from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty actually paid, had been received from Koyali and Manmad. The show cause notice also refers to letter dated 15-2-2000 from Manager (Finance) of the appellant to Superintendent (Preventive), Division-I, Bhopal. A perusal of this letter shows that the HSD, in question, had been received from IOC Koyali and Manmad terminal of BPCL. Since it is IOCL, Koyali and BPCL, Manmad which had cleared the pre-budget stock of HSD, in question, on payments of duty at pre-budget rates, the appellant cannot be treated as the person liable to pay the duty in respect of the HSD, in question, and hence, the provisions of Section 11D(1) would not be applicable to them. The impugned order is, thus, contrary to the provisions of Section 11D(1) and hence, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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