TMI Blog2007 (2) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants explained that this was owing to the common software they had used. In respect of the impugned goods they had passed on a lower amount than the actual incidence of tax on the goods they had borne. We find that the finding of the Commissioner that the impugned goods are excisable goods is totally misconceived and incorrect. From the unambiguous wording of the above sub-section the impugned demand of amounts collected as duty on clearances of imported petroleum products is not sustainable. Thus, the impugned order is not sustainable. Accordingly we set aside the impugned order and allow the appeal. - P.G. CHACKO (J) AND P. KARTHIKEYAN (T), MEMBERS For the Appellant : N. Venkatraman, Sr. Adv. For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own the value and duty as applicable to corresponding indigenous products. In deciding the goods cleared from bonded tanks to be excisable goods the Commissioner had relied on various case law defining goods. The Commissioner found the appellant's explanation of the entry Customs/Excise Duty in the 52A invoices as owing to their software problem to be a method of manipulation to recover higher amounts of duty than permitted under the Administered Pricing Mechanism and to allow the final user to avail Modvat credit of the said amount. He recorded a finding that the demand was had been proposed in terms of Section 11A(1) of the Central Excise Act, 1944 read with Section 11D(1) of the Act. Therefore, the excess amount collected by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he buyer of such goods shall pay the amount so collected to the Central Government. It was argued that Section 11D applied only to excisable goods and did not cover imported goods. During the hearing the representative of the appellants cited various case law in support of the argument that Section 11D was not applicable in case of amounts collected on sale of imported goods. He cited the decision of the Tribunal in the case of Hindustan Petroleum Corporation Ltd. v. CCE, Hyderabad 2002 (149) ELT 1294 (Tri. Chennai) and CCE, Mangalore v. Indian Oil Corporation Ltd. 2005 (191 ELT 356 (Tri. Bang) both of which had dealt with the same issue as in the impugned order and had decided that petroleum products imported by the appellants being not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government. In terms of the above provisions amount collected in excess of the duty assessed or determined and paid on any excisable goods alone is required to be paid to the Central Government. We find that the finding of the Commissioner that the impugned goods are excisable goods is totally misconceived and incorrect. From the unambiguous wording of the above sub section the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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