TMI Blog2021 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ter is remanded to the Adjudicating Authority for reconsideration and for passing de-novo order - Appeal allowed by way of remand. - EXCISE Appeal No. 10382, 10375 and 10447 of 2014-DB - A/12563-12565 / 2021 - Dated:- 2-12-2021 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Vipin Jain, Shri Abhishek Kapadia and Mrs. Dimple Gohil Advocates for the Appellant Shri Ghanshyam Soni, Joint Commissioner (AR) for the Respondent ORDER The brief facts of the case are that the appellant owns a refinery and engaged in the manufacture of Motor Spirit (MS for short) and High Speed Diesel (HSD for short). Appellant manufactured and supplied standard MS and HSD to various Oil Marketing Companies (OMCs for short) namely, Indian Oil Corporation Limited (IOCL), Hindustan Petroleum Corporation Ltd (HPCL), Bharat Petroleum Corporation Limited (BPCL) and Shell India. After clearance of MS and HSD, the OMCs add certain additives to these standardized MS and HSD at their depot after taking delivery from the appellant. In the said MS and HSD, the OMCs are mixing the additives and sold under different brand names. As per Notification No. 4/2008-CE dated 01.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be alleged, the extension of period of limitation could not be invoked, and the mandatory penalty could not be imposed. 2. The show cause notice was then adjudicated vide impugned order whereby the appellants eligibility for waiver of show cause notice under Section 11A(1)(b) read with Section 11A(2) of Central Excise Act, 1944 was rejected on the ground that part of interest amounting to ₹ 51,236/- was outstanding at the time of issuance of show cause notice. Accordingly, the demand of excise duty along with interest and penalty under Section 11AC was confirmed and penalties of ₹ 10 Lakh was also imposed on the appellants Shri RK Jain, DGM of the appellant and and Rs. One lakh on Shri Nitin Angre, Manager M/s. Shell India Markets Pvt. Limited. Therefore the present appeals filed by the appellants. 3. Shri Vipin Jain, learned Counsel along with Shri Abhishek Kapadia and Mrs. Dimple Gohil, Advocate appeared on behalf of the appellants. He submits that as per Notification, the term intended for sale without brand name means at the time of clearance of goods, the goods intended were sold without brand, the rate of duty shall be applicable accordingly. In the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such an act. 6. As regards the appellant Shri R.K. Jain, DGM, he submits that on the appellant penalty was imposed under Rule 26 of Central Excise Rules, 2002. None of the ingredients precedent for invoking Rule 26 is applicable to the facts of the present case. The applicant had no knowledge or role whatsoever in the sale of fuel intended for as unbranded being sold as branded fuel, especially when dosing of additives was done only subsequent to the clearance of goods at the OMC‟s depot. Without prejudice to the above, he further submits that the respondent has not come to the conclusion that MS and HSD in which demand for differential duty is made, is liable to confiscation. In absence thereof, no penalty under Rule26 is sustainable. With the above submissions, he prays that impugned order be quashed and set-aside as totally illegal and unsustainable and the appellant be refunded the differential duty along with interest thereon. 7. On the other hand Shri Ghanshyam Soni, learned Joint Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 8. We have carefully considered the submissions made by both the sides. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest amounting to ₹ 1,19,64,203/- demanded in the SCN and hence an amount of ₹ 51,236/- is still outstanding against them. Accordingly, the Noticee No.1 was not eligible for waiver of SCN under Section 11A(1)(b) read with Section 11A(2) of the Central Excise Act, 1944. 9. From the above findings, we observe that the Adjudicating Authority has quoted Section 11A(1)(2) of Central Excise Act, 1944 which is duly amended as per the amendment made by Finance Act, 2011. However, in the present case, the period involved is March 2008 to January 2010 therefore, the un-amended provision shall be applicable which is reproduced as under:- SECTION 11A. Recovery of duties not levied or not paid or short levied or short paid or erroneously refunded. --- (1) ----- (1A) ----- (2) ----- (2A) ----- (2B) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person, chargeable with the duty, may pay the amount of duty on the basis of his own ascertainment of such duty or on the basis of duty ascertained by a central Excise Officer before service of ,notice on him under sub-section (1) in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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