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2020 (9) TMI 222 - AT - Central ExciseBenefit of exemption under N/N. 28/2002-CE - Ethanol Blended Petrol (EBP) (Gasohol) - Allegation that the appellant had not complied with the condition of said notifications inasmuch as the EBP did not satisfy the Bureau of Indian Standard’s (BIS) specification 2796:2000 - requirement of deposit of duty under Section 11D of the Central Excise Act, 1944. Revenue’s main contention is that to be eligible for exemption under aforesaid Notifications, inter alia, it is required to show that EBP conforms the BIS 2796:2000 standards. It is their allegation that the Appellant failed to establish that the EBP cleared by them from their Vashi Terminal conforms the BIS specification - appellants, on the other hand, claimed that the tests carried out on the samples of EBP at their Vashi Terminal even though limited to nine out of fifteen tests, but indicate that the EBP confirms to the BIS 2796:2000 specification. They submitted the sample Test Reports conducted at Vashi Terminal to the department. HELD THAT:- There are no merit in the reasoning advanced by the learned Commissioner in rejecting the test reports. The appellant while clearing the EBP from their Vashi Terminal invariably conducted tests on the EBP samples to ascertain its quality and the specification of the product before clearance. Needless to mention the said product is subjected to strict control and orders issued by Central and State Government from time to time viz. Motor Spirit and High Speed Diesel(Regulation of Supply & Distribution and Prevention of Malpractices) Order,1998, where under the quality and specification of the MS to be strictly complied. It is found that at the Vashi Terminal where the duty paid MS and Ethanol were received, and after blending the same, EBP emerges, the Appellant carry out tests, albeit nine out of fifteen tests, which indicated that it conforms the BIS 2796:2000 specification and the control Order, 1998; and accordingly cleared/sold to their customers like other Refineries /terminals did. Later on being disputed by the department about the correctness of the test reports of EBP at Vashi Terminal as all the tests were not carried out on the samples, they subjected the samples tested at their Refinery and produced test certificates dated 1.6.2004 and 5.6.2004, which conform BIS specification 2796:2000 - the test reports on EBP at Vashi Terminal cannot be brushed aside unless contrary test result is produced by the Revenue. The said test results further confirmed when got tested at their equipped to test all parameters. Applicability of Section 11D to the facts of the present case - HELD THAT:- The Vashi terminal receives duty paid Motor spirit from their Refinery and also duty paid ethanol, which was blended in the ratio of 95:5 at the time of clearance from the Vashi unit to the customers in tankers. The price per KL of EBP was similar to the price charged by the appellant for unblended motor spirit to the customers - In the present case, the Revenue could not show that the appellant after blending ethanol with duty paid motor spirit collected separately, mentioning the duty on ethanol in the invoices, but not paid to the Government. Therefore, Section 11D of CEA, 1944 cannot be said to have been attracted. The Revenue has vehemently argued that the issue is covered by the judgment of this Tribunal in the appellant’s own case reported as IOCL Vs. Commissioner of Customs, Vadodara [2010 (10) TMI 399 - CESTAT, AHMEDABAD] - Analyzing the facts and the question of law involved in the said case, we find that there is no similarity between the said case and the appeal before us. Appeal allowed - decided in favor of appellant.
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