ORDER
S.S. Kang, Vice President
1. Appellant filed this appeal against the adjudication order passed by the Commissioner, Central Excise. In this case, the demand was confirmed on the ground that appellant had cleared the duty-paid stock of petroleum product from the bulk petroleum depot, after the increase in excise duty with effect from 28.2.1999 and also collected enhanced duty from their buyers which is not deposited with revenue. We find that this issue is decided by the Tribunal in the appellant’s own case in respect of their another depot in the case of Bharat Petroleum Corporation Ltd. v. C.C.E., Raipur . The Tribunal held as under:
We have considered the submissions of both the sides. Section 11-D(1) of the Central Excise Act provides that every person who is liable to pay duty and has collected any amount in excess of the duty assessed and paid from the buyer in any manner as representing duty of excise, shall pay the amount so collected to the credit of the Central Government. It lis 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 the amount of Central excise duty. It has only been presumed without any evidence that the prices were increased on account of increase in the rate of duty in the budget presented for the financial year 1999-2000. The ld Advocate has also relied upon the Board’s Circular No. 599/36/2001-EX dated 12.11.2001 wherein, it is mentioned that recovery of any amount representing as excise duty is a matter of fact to be accepted on the basis of documents. No such document has been brought on record in the present matter. Further it is well known fact that the prices of petroleum products are fixed by the Oil Coordination Committee which increased the prices of the High Speed Diesel Oil and there is nothing on record to show that the prices were increased for collecting the excess Central Excise duty. The ratio of the decision of Srichakra Tyres, relied upon by the ld DR is not applicable to the facts of the present matter as it is not in dispute that the High Speed Diesel oil was removed from the factory on payment of duty which was already included in the price and therefore the question of including the duty which was enhanced or levied subsequent to the clearance of the goods does not arise. In view of these facts, we are of the view that the Revenue has not succeeded in proving that the increased price of the petroleum products represented the Central excise duty and accordingly, we set aside the impugned order and allow the appeal.
The revenue filed an appeal before the Hon’ble Supreme Court and the same was dismissed [C.C.E. v. Bharat petroleum Corporation Ltd. 2003 (156) ELT A 326 (SC)].
2. In the present case also, we find that no excise duty has been separately shown in the invoices issued by the appellants when the goods were cleared from the depot. There is no evidence produced on record to show that what the appellant collected as a price from their buyer represented central excise duty. In these circumstances, we find that in view of the earlier order passed by the Tribunal, the demand is not sustainable. We set aside the impugned order and allow the appeal.
(Dictated and pronounced in open Court)