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TMI Blog2010 (10) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... ification No. 16/2003-C.E., dated 1-3-2003 has prescribed concessional rate of duty of Rs. 5,700/- per KL, if Motor Spirit (MS) is intended for use in Ethanol Blended Petrol (EBP), conforming to Bureau of Indian Standards specification 2796 (BIS 2796), subject to following the procedure laid down in the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001. (c) Notification No. 6/2003-C.E., dated 1-3-2003, exempts 5% Ethanol Blended Petrol from whole of BED and SED, provided that appropriate duties of excise has been paid on Motor Spirit (95% by volume) and on Ethanol (5% by volume). Likewise, Notn. No. 15/2003-C.E., dated 1-3-2003 exempts whole of the Additional duty of Excise on EBP, provided appropriate duty of excise on MS and Ethanol used to obtain the said EBP, has been paid. Likewise, Notification No. 16/2003-C.E., dated 1-3-2003 prescribes concessional rate of duty in respect of Special Additional Duty (SAD for short) on MS used for the EBP, i.e. Rs. 5,700/- per KL. The said notification (16/2003) also exempts 5% EBP only from Special Additional Excise duty. (d) The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llants were showing Rs. 6000/- as excise duty paid. Revenue has relied upon the provisions of Section 11D for this purpose. The text of Section 11D is reproduced below :- Section 11D (1) Notwithstanding anything to the contrary contained in any order or direction of the Appellate Tribunal or any Court or in any other provision of this Act or the rules made there under, every person who is liable to pay duty under this Act or the rules there under, 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 there under 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. (2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) and which has not been so paid, the Central Excise Officer may serve on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall, after considerin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r ER-1 returns. It is a separate question that they had taken wrong quantum of MS for the purpose of calculation resulting in excess payment. This issue is being dealt with separately. The fact of the case remains that while duty was paid at Rs. 5700/- per KL, the invoices issued to the buyers reflected the duty element as Rs. 6000/- per kilo litre. Where the duty assessed or determined is Rs. 5700/- and if the invoice is issued for Rs. 6000/-, the law requires the assessee to deposit the balance amount. It is pertinent to note that it is not the assessee or the manufacturer that is required to pay duty but every person who is liable to pay. It is not denied that IOCL was liable to pay duty in this case and therefore, the claim of the appellant that they as a warehouse was not liable to pay duty under Section 11D, cannot be accepted. Appellants have claimed that it cannot be said that they have collected excess duty in view of the fact that price to consumer in respect of EBMS is fixed by the Government. Section 11D has no provisions consider circumstances under which the duty was charged to the buyers. It also does not provide for considering the provisions of any other law, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods cleared under invoice are considered as duty paid ones. The provisions of Rule 8 provides for penal action where the duty is not paid before the due date and provisions of Rule 8(3)(a) of Central Excise Rules provide where the payments is not made by 5th of the next month or the due date, the goods are deemed to have been removed without payment of duty and penal consequences would follow. If the view taken by the department is correct, the provisions of Rule 8(3)(a) would not be required since the goods would be non-duty paid till the duty liability is discharged. This issue had come up before the Tribunal in the case of same assessee and while considering the application for stay, this Tribunal in the case of same appellant in the decision reported in 2009 (244) E.L.T. 86 (Tri.-Delhi.) had held that, duty payment by the due date as per Rule 8 of the Central Excise Rules, 2002 would be sufficient and goods have to be treated as duty paid though the same was not paid at the time when it was cleared and used. Further, we also find that decision of the Tribunal in the case of Kotagiri Estate Tea Factory v. CCE, Coimbatore - 1999 (106) E.L.T. 345 (Tri.) cited by the learned advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no mention about the invocation of extended period in the show cause notice and whether there was any suppression of fact/mis-declaration/fraud or collusion and there is no discussion 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. Therefore, it is quite obvious to us that neither the extended period was proposed nor has been invoked. Thus, the demand is required to be set-aside and accordingly, is set-aside. 9. The next issue is appeal filed by the appellants relating to refund claim filed by them. The refund claim has been rejected on the ground of unjust enrichment and on the ground that the duty on MS had not been paid before blending and hence exemption is not available. We have already held that appellant is eligible for exemption. As regards, unjust enrichment, in view of the fact that price of MS and Petroleum products is being f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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