ORDER
G.N. Srinivasan, Member (Judicial)
1. This is an application for waiver of deposit of duty of Rs. 25,27,66,838.70, and a penalty and interest on RS 12,08,23,981.70 for the period from 1.10.1996 to 31.1.199 under Section 11AC of the Central Excise Act.
2. The case of the department is that the appellant who is supplying crude oil to various refineries had to follow the provisions of Oil Industry ((Development)Act (hereinafter referred to as the Act,) and to pay cess in terms of section 15 (1) of the Act on the quantity received at the various refineries. It is emphasised there that various refineries owned by the Indian Oil Corporation Ltd. Bharat Petroleum Corporation Ltd and Hindustan Petroleum Corporation Ltd received the crude at the point where the crude enters the pipeline from Central Tank Form (CTF) of the appellants. Therefore, it is the case of the department that the effective transfer of the custody of the crude from the appellants to the respective refinery takes place a that point of the quantity of the crude in the pipeline and at that point represents the quantity of crude on which cess is to be paid in terms section 15 (1) of the Act. The show Cause Notice dated 25th March, 1999 also mentions that in case of ONGC oil transfers from the Bombay High, there is no variation between the quantity despatched and quantity received on which cess is paid and that there is no provision for deduction of 1% amount from the quantity despatched for the purpose of arriving of quantity on which cess is paid, and that related to state is paid by the ONGC on the quantity despatched. The main difficulty in the case before us is between the quantity despatched by the appellants to the various refineries and the quantity acknowledged by the refineries at their terminals. Reply to the Show Cause Notice was filed by the appellant on 25.5.1999. In the reply the appellants stressed the point regarding the invocation of the larger period by the department inasmuch right from 1986 onwards the appellants had been paying the cess on the basis of he crude acknowledged to have been received at the refineries. This is revealed in the minutes of the meeting taken by the then Member of the Central Board of Excise and Customs on 6.1.1986. The said minutes had been sent to the Assistant Collector (Audit) by the appellants’ communication dated 30.6.1994. The Show Cause Notice which has been issued on 25.3.1999 was for the period from 1.4.1994 to 31.1.1999 was for the period from 1.4.1994 to 31.1.1999. It is further emphasised before us that by its communications dated 1.5.1999 (at page 498) and 8.8.1996 (at page 499) the department has been demanding the payment in respect of he difference between the crude oil despatched from the CTF of the appellant and the crude oil received at the refinery heads. It is therefore emphasised by the appellants that having possessed the knowledge by the department, invocation of the larger period of limitation in this case is not warranted. The appellant also informed before us that out of the total demand of Rs. 25.00 crores, they have already paid in March this year a sum of Rs.3.00 crores and they also informed us that if the normal period is taken for purpose of taxation, the amount would be only about Rs 60.00 lakhs.
3. The departmental representatives reiterates the grounds mentioned in the impugned order.
4. We have considered the rival submissions and also perused the adjudication order passed by the Commissioner. We are prima facie of the view a strong case has been made out by the appellant on limitation because the department seems to know about the manner in which duty is to be paid on the quantity acknowledges to be received at the refinery head which is revealed in the minutes of the meeting held in January 1986 which has been communicated to the Assistant Collector in 1994. Further, the communications of the department reflected at pages 498 and 499 show that the department was demanding duty at the quantity of despatches received att he refinery head. We therefore, taking note of the payment of Rs.3.00 crores in March this year, waive the remaining amount of duty adjudicated by the adjudicating authority along with penalty and interest and order stay of collection thereof during the pendency of the appeal.
5. The learned Senior Counsel on behalf of the appellant pleads before us, since the matter is a heavy one out of turn hearing should be given to the disposal of the appeal. We have acceded to the request and post the case for hearing on 9.10.2001.