TMI Blog2017 (5) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... wed - decided in favor of assessee. - E/538/2006-DB, E/539/2006-DB - Final Order No. 20594-20595 / 2017 - Dated:- 25-4-2017 - Shri S.S Garg, Judicial Member And Shri V. Padmanabhan, Technical Member Shri G. Shivadass, Advocate for the appellant Shri Parashivamurthy, N.K., Deputy Commissioner(AR) for the respondent ORDER Per S. S. Garg In these two appeals, the issue is same. The appellants have filed these two appeals against two impugned orders passed by Commissioner dt. 30/12/2005 whereby the Commissioner has confirmed the duty along with interest. Since a common issue is involved in both the appeals, they are being disposed by this common order. 2. The details of both the appeals are given herein below:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Kasargode Power Corporation Ltd., Kasargod (KPCL, for short), who are entitled to exemption under Sl.No.29 of Notification No.6/2002 dt. 01/03/2002 as LSHS is used for generation of electricity. During the period in question, refinery was allowed to remove petroleum products under bond without payment of duty to the storage point viz. the warehouse. The duty was required to be paid at the time of removal of petroleum products from the storage point, wherever it is possible. The Central government vide Notification No.17/2004-CE(NT) dt. 04/09/2004 withdrew the warehousing facility applicable to petroleum products w.e.f. 06/09/2004. Consequent to the withdrawal of warehousing facility, the appellants were not entitled to received any pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by misconstruing and misinterpretting the Board circular as well as by ignoring the binding judicial precedents on the same issue. He further submitted that supplies to KDPP and KPCL continued to be exempt from payment of excise duty in terms of Sl.No.29 of Notification No.6/2002-CE. The exemption is applicable where the supplies were made directly from the refineries or from the warehouse which received the goods from such refineries. He further submitted that the Notification No.17/2004-CE dt. 04/09/2004 was issued withdrawing the warehousing facility to petroleum products w.e.f. 06/09/2004. This withdrawal does not affect the availability of exemption as clarified in para 4 of the circular itself. He also submitted that the Board vide Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her submitted that out of the total stock of 4686.619 MT and 940.466 MT at Nallalm and Mylatty installations, a quantity of 4607.191 MT and 909.075 MT was subsequently cleared to KDPP and KPCL respectively, who were eligible for exemption for the receipt of LSHS under Notification No.6/2002 dt. 01/03/2002. The balance 79.428 MT and 31.373 MT is storage loss. The learned counsel also submitted that the said losses are due to inherent nature of the petroleum products, where the losses occur due to variation in temperature or density etc. and considering these peculiar nature of the petroleum products, the CBEC has prescribed a percentage upto which storage losses has to be condoned and the manner of computation of such losses in refinery and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is no doubt true that the warehousing facility was withdrawn w.e.f. 6-9-2004 pursuant to the Circular dated 4-9-2004. It is also not in dispute that if any material which attracts excise duty remain in the bonded warehouse on or before 6-9-2004 is liable to pay excise duty. But in Para 4 of the said circular certain exemptions are granted. Para 4 of the circular reads as hereunder : Certain products are allowed to be cleared without payment of duty to specified categories of end-users, subject to the specified conditions. These exemptions continue to be in force. If such clearances to the end-users are effected directly from the refinery, no difficulty should arise in the implementation of such end-use exemptions. If any problem i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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