TMI Blog2002 (5) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... een imposed on the appellants under the impugned order. 2. Sh. A.R. Madhav Rao, ld. Advocate, submitted that when the petroleum products are cleared by the appellants from refinery or the installations Central excise duty is paid on the assessable value prevailing at the depot at the time of removal of the goods; that the prices of the petroleum products are fixed under the Administered Price Mechanism (APM) by the Oil Co-ordination Committee (OCC) and accordingly, the duty paid stocks of HSD at their depot was sold at the revised prices by the appellants; that the demand has been confirmed and penalty has been imposed by the Commissioner on the ground that the appellants had collected the excess amount representing the duty of excise. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt from the buyer in any manner as representing duty of excise shall forthwith pay the amount so collected to the credit of the Central Government and as during the period of exemption the respondents therein was not liable to pay any excise duty, the Revenue's claim can only be treated as a mere presumption, lacking in any evidence to show that the surcharge was represented as duty of excise. He also relied upon the decision in the case of CCE, Mumbai v. Mahindra Mahindra Ltd. [2001 (132) E.L.T. 632]. 3. Countering the arguments, Sh. M.P. Singh, ld. DR, submitted that the adjudicating authority has given a categorical finding in the impugned order that the appellants had pre-budget stock of HSD on which duty incidence was discharged a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt so collected to the credit of the Central Government. It is thus evident from the provision that the amount should be collected as representing duty of excise from the customers. The facts in the case of Mahindra Mahindra no doubt are different from the facts in the present matter but the observation of the Tribunal in the said case was that evidence has to be brought on record that what was collected by the respondents represented the duty of excise. These observations were made by the Tribunal following earlier decision in the case of Perfect Refractories. In the present matter, we find that no evidence has been brought on record by the Revenue to show that what was collected as prices by the appellants from their buyers represented ..... X X X X Extracts X X X X X X X X Extracts X X X X
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