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Hindustan Petroleum Corporation Ltd Versus The Commissioner of Central Excise, Belapur

2017 (11) TMI 600 - CESTAT MUMBAI

Valuation - SKO(PDS) - whether duty payable on SKO(PDS) should be on the retail sale price fixed by the government/OCC under administered price mechanism or on the value recovered from oil marketing companies during the disputed period? - extended period of limitation - Held that: - issue involved in the present case is identical to the issue which was referred to Larger bench as per the Larger bench judgment in case of ONGC [2015 (11) TMI 1038 - CESTAT MUMBAI (LB)], the assesse has to discharge .....

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ed in favor of appellant. - E/131/08 - A/90351/17/EB - Dated:- 31-10-2017 - Mr Ramesh Nair, Member (Judicial) And Mr. Raju, Member (Technical) Shri. M.H. Patil, Advocate for the Appellants Shri. V.K. Agarwal, Addl. Commissioner(A.R.) for the Respondent ORDER Per : Ramesh Nair The issue involved in the present case is that whether duty payable on SKO(PDS) should be on the retail sale price fixed by the government/OCC under administered price mechanism or on the value recovered from oil marketing .....

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osing 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 Central Excise Act, 1944. The price fixed by the Government for sale of SKO(PDS) to end users is value applied based on the Hon ble Supreme Court in case of Mazgaon Dock L .....

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are pending for final decision before the Hon ble Supreme Court, some of which are as under; i) ONGC - Civil Appeal No.8063-8069 of 2010 and Civil Appeal Nos.4197-4199 of 2010 - {Para 10 of Tribunal Larger Bench judgment dated 10.9.2015 in the case of ONGC v/s CCE} ii) IOCL's Civil Appeal No.5686 of 2014 - which tagged with ONGC Civil Appeal No.8063-8069 of 2010 - {from Case Status in Supreme Court} iii) BPCL's Civil Appeal No.5642 of 2009 against Tribunal Order reported in 2009 (242) E .....

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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-T .....

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m oil marketing company by issuing commercial invoice, therefore in view of the said decision this issue is no longer res integra. As regard the limitation we find that issue involved was of interpretation of law and there are contrary decision on the issue, matter was referred to the larger bench, the Larger bench has resolved the dispute by answering question referred to it. It is settled law that in the judgment of Wonederax Laboratories (supra) which was approved by the Hon ble Supreme Court .....

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uty. On this count decision of Markfed Refind Oil & Allied Industries(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 Ma .....

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