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2015 (4) TMI 1020 - CESTAT MUMBAI

2015 (4) TMI 1020 - CESTAT MUMBAI - TMI - Penalty u/s 11AC - whether penalty under Section 11AC has been rightly imposed on the appellant in the fact that due to change in the warehousing provisions w.e.f. 6.9.2004 vide Notification No. 17/04-CE, the appellants are having certain quantity of stock in the warehouse, which was declared to the department on 6.9.2004 itself - Held that:- Issue as to differential duty has been arisen in the facts of this case as a matter of interpretational issue. Th .....

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AL) For the Petitioner : Ms. Padmavati Patil, Advocate For the Respondent : Shri H.M. Dixit, AC (AR) ORDER Per: Shri Anil Choudhary The appellant, M/s Indian Oil Corporation Ltd., is in appeal against Order-in-Appeal No. 87/MAK(87)/COMMR/RGD/13-14 dated 24.10.2013 passed by the Commissioner of Central Excise (Appeals), Raigad. 2. The issue involves in this appeal is whether penalty under Section 11AC has been rightly imposed on the appellant in the fact that due to change in the warehousing prov .....

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the place of storage under Rule 220 of Central Excise Rules, 2002 w.e.f. midnight of 5/6 Sept., 2004 for petroleum products, the appellant should have paid appropriate duty on the entire bonded stock of petroleum products lying in their premises on such date. In the earlier round of litigation, the matter has reached before this Tribunal in Appeal No. E/3320 and 3321/06-Mum vide order dated 26.4.2013, this Tribunal observed as follows: - 3. We find that the duty stands confirmed against the app .....

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100% EOU in respect of the stock on the date of the warehousing facility is withdrawn. 4. We find that these issues are decided by the Tribunal in favour of the appellants own case in Appeal No. E/405/2006 Final Order dt. 21.8.2007 and the same has been upheld by the Honble Gujarat High Court vide order dt. 18.4.2012 in Tax Appeal No. 435/2008. 5. In view of the above decision, the benefit of Notification No.64/95-CE is available in respect of the warehoused goods cleared to Indian Nevy. Hence .....

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tainable. Hence it is set aside. 7. In respect of part of the demand, pertaining to the value of the goods cleared from depot at a higher price than the price on which duty is paid at the time of clearance from warehouse and in respect of the shortage, we find that the committee on dispute had not given permission to pursue these demands confirmed on these grounds. From the record, we find that the duty has not been quantified on the ground of valuation and shortage. Therefore, in this regard, t .....

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7,033/- not paid on unaccounted quantity of 39.66KL of furnace oil found short, if the shortage is within the permissible limit and therefore, dropped the demand of the same. Further, as regards he differential duty amounting to ₹ 27,53,567/- being duty allegedly short paid on 19679.54 KL of furnace oil cleared by adopting the ex-factory price at ₹ 11044.245/KL as against the depot price of ₹ 11901.60/KL. The Commissioner has observed as follows: - I find that the assessee has .....

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as the same is meant for sale of furnace oil within Municipal limit. Therefore, correct price for charging Central Excise duty on 19679.54 and 5051.766 KL of furnace oil should have been @ 11762.60/KL. Accordingly, by adopting a price of ₹ 11762.60/KL the differential Central Excise duty liable to be recovered on the quantity of ₹ 19679.54 and 5051.766KL of furnace oil works out to be ₹ 26,61,654/-. The assessee has already paid ₹ 26,61,654/- vide challan dated 29.3.2008 .....

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