Per Jyoti Balasundaram

1. The assessees challenge the duty demand of Rs.71,57,637/- collected, by them as excise duty from their retail outlets and certain direct customers, on the ground that they are only the depots from whom the duty cannot be collected as duty liability lies upon the manufacturer of the goods in question. In this connection, they rely upon the decisions of the Tribunal in Bharat Petroleum Corporation Ltd. Vs Commissioner reported in 2002 (144) ELT 672, 2002 (146) ELT 646 and 2003 (158) ELT 833 and also upon the fact that the S.L.P filed by the Revenue against the Tribunals order reported in 2003 (158) ELT 833 has been dismissed, as seen from 2004 (172) ELT A133 (SC) and the Tribunals order in their own case reported in 2007 (212) ELT 536.

2. Following the ratio of the above decisions, which held that demand under Section 11D of the Central Excise Act, 1944 can only be made from the manufacturer of the goods in respect of which such amount was collected and noting the admitted position that assessees are not the manufacturers of the goods in question, we set aside the impugned order and allow the appeal.