Per C. Satapathy : This appeal filed by M/s. HPCL, a public sector undertaking is against a demand of Rs. 41,73,015/- under Section 11D (3) of the Central Excise Act, 1944 passed by the Commissioner, Central Excise and Customs, Aurangabad. The demand relates to sale of petroleum products from the depot of the appellants at Jalgaon. Part of the product was obtained from HPCL's own terminals and part of the product was obtained from terminals of other oil companies namely BPCL and IOCL. The dispute relates to stock obtained by the depot on payment of duty prior to revision in prices of the impugned goods but sold from the depot after revision in prices. The demand is based on the details furnished in Annexure A to the show cause notice. From this Annexure, it is seen that the cum duty price has been increased 6 times, it remained the same once and it decreased once. The learned advocate for the appellants says that the excise duty has been increased only twice and on other occasions, there were pure increasesin price. Since the prices of impugned goods were administered, the petroleum company had no choice in fixing the price or the excise duty component. There is no allegation that HPCL has not paid the correct amount of duty at the time of clearing the impugned goods from the terminal. The allegation is that by obtaining the stock of the impugned goods at pre-revised prices from the terminals and selling the stock at post revised prices from the depot, they have collected excess amount of excise duty from the customers and therefore, they require to pay the excess amount to the government under Section 11D.

2. The matter was argued at length by Shri A.M. Setalwad, learned counsel for the appellants and Shri M.K. Gupta, learned Jt. C.D.R. for the Revenue. After hearing rival submissions and perusal of case records, we find that the short point is whether Section 11D is applicable in the instant case. Section 11D requires that "every person who is liable to pay duty under this Act or the rules made thereunder, and has collected any amount in excess of the duty assessed or determined and paid on any excisable goods under this Act or the rules made thereunder from the buyer of such goods in any manner as representing duty of excise, shall forthwith pay the amount so collected to the credit of the Central Government". The main ingredients of this Section are that a person should have collected an amount (in excess of the duty assessed) in any manner as representing duty of excise from the buyer of such goods. In the instant case, we find that only a composite price under the administered pricing mechanism has been charged from the buyers under relevant invoices. We do not find any amount has been charged representing the same as duty of excise. Therefore, one of the main ingredient to attract Section 11D is lacking in this case.

3. In view of above, since the depot of the HPCL has only recovered from the buyer the amount fixed under the administered pricing mechanism without collecting any amount representing the same as duty of excise, we are of the view that Section 11D is not attracted in this case. As such, we set aside the impugned order and allow the appeal.