2017 (11) TMI 600

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..... he brief fact of the case is that appellant M/s. HPCL Vashi was receiving SKO(PD) from their Mumbai refinery under bond during the period from 1-9-2000 to 6-9-2000. HPCL's sale price of SKO(PDS) to other than the OMCs was higher than ultimate sale price of OMCs to their end customer and HPCL discharged duty on the sale price of the OMCs to their end consumers. The show cause notice dated 30-9-2005 was issued proposing to adopt actual sale price of SKO (PDS) to OMC as the assessable value for the purpose of payment of duty. Show cause notice was adjudicated by the Commissioner vide order dated 30-10-2007 wherein it was held that duty was payable on actual sale price of HPCL to other OMC being transaction value under Section 4(1) (a) of C .....

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..... ly pray the Hon'ble Tribunal to keep the present matter pending till final verdict from the Supreme Court on the aforesaid civil appeals. Without prejudice to the above, appellant making following submissions in respect of their contention that duty on SKO(PDS) was payable on the ultimate sale price fixed by the government OCC under APM and not on the value recovered from DMCs. 3. On the other hand, Shri. V.K. Agarwal, Ld. Addl. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the finding of the impugned order. He further submits that issue on merit is no longer resintegra against assessee as per the Larger Bench decision of this Tribunal in case of ONGC [2015-TIOL-1960-CESTAT-MUMBAI-LB]. He also placed reliance on the deci .....

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..... ries(supra) which was upheld by Hon'ble Panjab and Haryana High Court, NEPA Limited(supra) and Hindustan Petroleum Corpn Ltd(supra) decided the issue that in case of government undertaking unit malafide intentions cannot be attributed to the assessee. For this reason also the demand of extended period will not survive. We also considered the fact that Central excise records were being audited by the audit party and CERA from March therefore there cannot be suppression of facts on the part of the appellant. It is also observed that this issue was very much in the knowledge of the government as various correspondence between ministry of finance and ministry of petroleum were made on the issue involved in the case. Moreover, on the issue, boar .....

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