C.N.B. Nair, Member (T)
1. These appeals of M/s. Oil India Limited (O.I.L.) and Indian Oil Corporation Limited (I.O.C.) are directed against the same Order-in-Original No. l/Commr./CH-27/C.E./2000 dated 1-2-2000 passed by the Commissioner, Central Excise, Shillong. In respect of the appeal of O.I.L., stay order in terms of Section 35-F of the Central Excise Act has already been passed. In the case of I.O.C, a penalty of Rs. 5 lacks has been imposed and the same is required to be deposited for hearing of the appeal. As both the appeals are against the same order and stay order has already been granted in the case of O.I.L., we grant stay of pre-deposit to M/s. Indian Oil Corporation Limited also and take up that appeal also for disposal along with the appeal of O.I.L.
2. We have heard learned Counsels, Shri V. Lakshmikumaran for O.I.L. and Shri R. Venkataraman for I.O.C. and the learned SDR for the Revenue.
3. The dispute arising in this appeal is the valuation of LPG extracted by O.I.L. Such LPG is thereafter marketed by I.O.C. Both the sides submit that the LPG so extracted and marketed is required to be assessed duty at the prices fixed by the Oil Coordination Committee. Both sides also submit that this issue remains settled by the decision of the Larger Bench of this Tribunal in the case of GAIL, IOCL and ONGC vide Final Order Nos. 1528-1538/99-A dated 27-10-1999. In terms of that order, the duty liability depends upon the purpose for which the LPG is earmarked, whether for sale as packed domestic/packed non-domestic or for sale in bulk. In the instant case, the sale and duty collection have been made in terms of the prices fixed by the Oil Cdbrdination Committee. Duty demand of Rs. 7,46,65,970/- which has already been paid by the appellants is in confirmity with the order of the Larger Bench of the Tribunal. The balance duty demand of over Rs. 9 crores is contrary to the said order.
4. Since the correct method of valuation and duty demand of LPG in question remains covered by the aforesaid order of Larger Bench of this Tribunal, following that order we uphold the duty demand of Rs. 7,46,65,970/- and set aside the remaining duty demand of Rs. 9,05,95,530/-. In addition to the duty demand, penalty has been imposed on I.O.L. under Section 11 AC. The duty demand in the present case related to the period prior to enactment of Section 11 AC. Therefore, this penalty cannot be sustained. The same is, therefore, set aside. With regard to penalty of Rs. 5 lacs on I.O.C., it is observed that I.O.C. was only marketing the goods in question and the sales and collection of duty were all in terms of prices fixed under the administrative price mechanism. They cannot be faulted for carrying on their business in accordance with the administrative price mechanism. Penalty, therefore, was not justified. The same is accordingly set aside.
5. Both the appeals are disposed of on the above terms.