BONGAIGAON REFINERY & PETROCHEMICALS LTD. Vs. CCE, SHILLONG

JUDGEMENT

(1.) HEARD both sides. This appeal was dismissed earlier for want of COD clearance. In view of the fact that the COD clearance has been obtained subsequently and a copy of the same has been filed, the earlier order of dismissal dated 5 -8 -2004 is recalled, Miscellaneous Application for restoration of appeal is allowed and the appeal is restored to its original number.

(2.) IN this case, the appellants have sold the impugned goods to their holding Company, M/s. IOC. They have charged only 50% of the duty under Notification 21/02, dated 1 -3 -2002 while clearing the product to M/s. IOC. The impugned demand has been confirmed against the appellants under Section 11D on the ground that M/s. IOC has shown 100% duty collected from their customer. It is pleaded on behalf of the appellants that M/s. IOC has shown the duty as 100% by mistake and in any case, selling price inclusive of duty was fixed as per the Central Government Directive. We find that Section 11D relates to a person who is required to pay duty and if such person collects extra amount as duty, he is required to pay the extra amount to the Government. Prima facie, in this case, the appellants are required to pay duty and they have collected no extra amount from their customer, M/s. IOC. Hence, we are of the view that the appellants have made out a case for waiver of the pre -deposit. Accordingly, we waive the requirement of predeposit during pendency of the appeal. Stay petition is allowed.