Per Justice K.K. Usha :

The appeal is directed against the order passed by Commissioner of Central Excise dated 25.10.2001. The only issue arising in this appeal is whether a demand can be raised under Section 11-D of the Central Excise Act, 1944 against a dealer. In other words, so long as the appellant is not a manufacturer can a demand under Section 11-D be maintainable against it.

2. The show cause notice was received by the appellant which proposed the demand of duty alleging that in respect of duty paid stocks of Motor Spirit (MS), High Speed Diesel (HSD) and Furnace Oil (FO) lying at the Meerut depot as on the dates of price revisions during the period, excise duty was collected at the revised rates and hence excise duty so collected should be deposited with the Central Government under Section 11D read with Section 11A of the Central Excise Act. It was contended by the appellants that they are not the manufacturers of the goods, that they bought the goods from IOC, Panipat/Mathura, that they have only traded in the goods and therefore, the provisions of Section 11-D are inapplicable.

3. The Commissioner did not accept the contention raised by the appellant. It was held that those who sell the petroleum products received from the installations are extended arm of the said installations and the sale is based on the administered prices, which are approved by Ministry of Petroleum. They are also registered dealer, duly registered with the Central Excise Department under Rule 174 of the Central Excise rules, and therefore demand under Section 11-D would be maintainable. According to the learned Commissioner the phrase 'every person' appearing in Section 11-D would include the appellant who have collected the amount from the buyer of the goods as representing duty of excise and shall pay the amount so collected to the credit of Government. The appellant had placed reliance on a decision of the Andhra Pradesh High Court in the case of M/s. Laxmi Starch Vs. UOI 1993 (67) ELT 769 (AP) in support of its contention. The Commissioner rejected the above plea observing that the decision is not applicable to the appellant's case.

4. It is submitted before us by the learned counsel for the appellant that by Section 103 of the Finance Act, 2000, sub-section (1) of Section 11-D was amended with retrospective effect from 20.9.91. By this amendment the term 'every person' has been qualified as one who is liable to pay duty under the Central Excise Act or the rules made thereunder. The liability to pay a duty is on the manufacturer and not on the dealer. The learned counsel further pointed out that the decision of the Andhra Pradesh High Court had given an interpretation to the term 'every person' under sub-section (1) of Section 11-D before the amendment referred above as the manufacturer/producer. Under these circumstances, it is contended that the demand directed against the appellant under Section 11-D is not maintainable.

5. There is no dispute before us that demand sustained by the Commissioner was in respect of the goods which were not manufactured by the appellant. Before the Andhra Pradesh High Court the constitutional validity of Section 11-D, before its amendment was under challenge alongwith other provisions. In order to uphold the constitutionality of the provisions the High Court read down the expression 'every person' in sub-section (1) of Section 11-D as the manufacturer/producer as also the expression 'every person' appearing in Section 28-B of the Customs Act as the importer. It was the above view that has been expressed by this statutory amendment under Section 103 of the Finance Act 2002 with retrospective effect from 20.9.91. In the present case, we are concerned with the demand for a period from July 1997 to August 2000. Under these circumstances, the appellant's contentions are only to be accepted. No demand can be raised against appellant under Section 11-D as it is not the manufacturer of the concerned goods. In th