TMI Blog2010 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... on available in the show cause notice or in the order in original - The demand is for the period April 2003 to June 2003, whereas the show cause notice was issued on 19-4-2005 - Extended period is not invoked in the show cause notice or in the order in original and hence the demand cannot be confirmed. Further, no penalty has been imposed under Section 11AC of Central Excise Act, 1944 - Thus, the demand is required to be set-aside. Refund claim - where the sale price of end product is controlled by the Government, assumption that assessee would have passed on the incidence of duty to the customer, is neither reasonable nor logical - Under these circumstances find that the appellant is eligible for the refund claimed by them. - E/167/2007 & E/15/2008 - A/1802-1803/2010-WZB/AHD - Dated:- 22-10-2010 - Ms. Archana Wadhwa, Member (J) and Shri B.S.V. Murthy, Member (T) REPRESENTED BY : Shri M.H. Patil and Ms. Padmavati Patil, Advocates, for the Appellant. Shri Avinash Thete, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - The appellants are seeking stay of the demand in the impugned order. However, in view of the fact that appeal number E/167 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,700/- per KL on MS contained in EBP. (g) The said excess amount of duty of Rs. 79,67,817/- paid during the the period April 2003 to July 2003 was claimed as refund by IOCL. (h) However, at the time of sale, IOCL showed element of excise duty paid as Rs. 6,000/- per KL while selling EBMS at administered price. (i) Show cause notice was issued on 22-6-2004, proposing to reject refund claim alleging that duty on MS was not paid before blending so exemption under various notifications not available and that the claim is hit by bar of unjust enrichment. (j) Second show cause notice dated 19-4-2005 was issued proposing to recover the duty of Rs. 43,48,652/- under Section 11D/11A.. (k) Refund claim was rejected by Order in original dated 16-12-2004 and upheld by order in appeal dated 30-11-2006, on the ground that exemption was not available, as duty not paid on MS before blending and hit by unjust enrichment. (Appeal No. E/167/07) (l) Duty of Rs. 43,48,652/- was confirmed by order in original dated 28-8-2006, as upheld by order in appeal dated 28-9-2007, on the ground that, invoices showed excess recovery of SAED and there is short payment of BED a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under that Section in such cases within six months from the date of the public notice to be issued by the Assistant Commissioner of Central Excise for refund of such surplus amount. 5. Submission by the learned advocate in this regard was that the price of EBMS is controlled by the Ministry of Petroleum and Natural Gas, and the same is required to be kept at par with the prices of normal MS. Since the appellants did not have any control over the prices of products sold to the customers, the question of excess collection of excise duty under Section 11D of Central Excise Act does not arise. It was also submitted that since the duty has been paid on the quantum of MS drawn for blending with Ethanol, the condition of notification has been fulfilled. It was also submitted that provisions of Section 11D are not applicable to Dealers/Warehouse and is only applicable to the manufacturer. It was also submitted that the demand is barred by limitation. 6. As can be seen from the provisions of Section 11D, Notwithstanding anything to the contrary contained in any order or direction and of the Appellate Tribunal or any Court or in any other provision of this Act or Rules made there under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... denied the benefit on the ground that appellants have failed to produce any proof regarding payment of appropriate duty of excise on 95% of MS used in the blending of EBMS. As fairly admitted by the appellant, the appellants discharged the duty on MS as well as on EBMS by 5th of every month only. Therefore, Commissioner observed that MS when it was used for blending with ethanol was non-duty paid, on the face of it appears to be correct. However, we have to consider the provisions of Rule 8 of Central Excise Rules, 2002. The said rule provides that duty liability shall be deemed to have been discharged if the amount payable is credited to the accounts of the Central Government by the specified dates. This would mean that the goods can be said to be non-duty paid only if the duty liability is not discharged by the due date. This can be illustrated by another example. Supposing there was another notification which provides exemption to the product subject to the condition that MS on which the duty has been paid is used to another manufacturer. In that case, department cannot take a stand that MS can be used by the receiver in the manufacture of further products to avail exemption onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al scriptory work to avail the benefit of exemption notification. Learned DR has not been able to place any evidence to show that this decision has been over ruled. He has not been able to show any contrary decisions of any higher judicial forum. In these circumstances, we hold that it cannot be said that the MS used in the manufacture of EBMS is to be treated as non-duty paid subject to the condition that appellants have discharged the liability before the due date for payment of duty on said MS. There is no such allegation or observation by the lower authorities. Therefore, the Commissioner s order that appellants are not eligible of exemption notification, cannot be sustained. 8. An amount of Rs. 1,36,622/- has been demanded on the ground that value of clearances for the period April 2003 to June 2003 was Rs. 11,30,15,186/- and excise duty payable/paid is shown as Rs. 11,25,59,779/- and Central Excise duty paid/payable was worked out as Rs. 3,37,67,934/-, resulting in short payment of duty of Rs. 1,36,622/-. This amount is as per Para 5(a), Para 5(b) and Para 5(c) of the order in original. The amount of Rs. 1,36,622/- reflected the difference between the amount calculated towa ..... 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