TMI Blog2010 (3) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... aking any decision on remission application not sustainable. Matter remanded. - E/2555 & 2649/2009 - 131-132/2010-EX(PB), - Dated:- 23-3-2010 - Justice R.M.S. Khandeparkar, President and Shri Rakesh Kumar, Member (T) Shri Rajesh Kumar, Advocate, for the Appellant. Shri B.K. Singh, Jt. CDR, for the Respondent. [Order per : Rakesh Kumar, Member (T)]. - The facts giving rise to these appeals alongwith stay applications are, in brief, as under. 1.1 M/s. DSM Sugar Asmoli, District Moradabad, is a company engaged in manufacture of sugar of which molasses is a byproduct. Both the sugar and molasses are chargeable to Central Excise Duty. Shri Gaurav Goyal, is a Managing Director of the appellant company. According to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on such quantity of molasses. 1.3 The show cause notice was adjudicated by the Commissioner, Central Excise, Meerut-II vide order-in-original No. 17/Commr./MRT-II/09 dated 18/05/09 by which the duty demand of Rs. 70,73,474/- was confirmed against the appellant company alongwith interest under Section 11AB of Central Excise Act. The Commissioner also imposed penalty of equal amount i.e. Rs. 70,73,474/- (Rupees Seventy Lakh Seventy Three Thousand Four Hundred Seventy Four) on the appellant company under Section 11AC of Central Excise Act, 1944 and also the penalty of Rs. 5,00,000/- (Rupees Five Lakh) on Shri Gaurav Goyal, the Managing Director of the appellant company. The Commissioner while passing this order, gave a finding that as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the incident of fire was promptly reported to police by filing an FIR as well as to Jurisdictional Central Excise officers on 6-4-07 as well as on 7-4-07, that on account of fire, 9156.6 M.T. of molasses was destroyed, that the accident about the fire was also intimated to State Excise Inspector on the same day and had been witnesses by him, that the Jurisdictional Central Excise officers visited the appellant's premises on 9-4-07 and took the sample of what was left from the burnt molasses in the RCC tank No. 4, that on 30/5/07 after quantifying the loss of molasses due to fire, an application was made to the Commissioner for remission of duty on the molasses lost in fire, that from the stamp regarding receipt on the remission applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en up for final disposal after waiving the requirement of pre-deposit. 6. Though the show cause notice dated 29-4-08 issued to the appellant gives the impression as if the Department was not aware of the loss of molasses in the appellant's factory due to fire on account of Auto combustion on 6-4-07, the appellant plead that the Jurisdictional Central Excise authorities had been intimated about the fire due to auto combustion in RCC tank No. 4 on 6-4-07 itself and also subsequently on 7-4-07 and, that subsequently on 30-5-07 they had submitted an application addressed to the Commissioner for remission of the duty. A copy of the application dated 30-5-07 for duty remission available in the appeal memo bears the Commissionerate's stamp dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while all the evidence indicates to the contrary. Since prima facie application for remission of duty had been filed, first the decision should have been taken in respect of remission application and only then, the show cause notice should have been taken up for adjudication but the Commissioner has decided the show cause notice without taking any decision on the remission application. In view of this, the impugned order is not sustainable. The same is set aside and the matter is remanded to the Commissioner for de novo adjudication after first deciding the appellant company's application for remission of duty. The show cause notice is to be taken up for adjudication only after decision on the appellant's application for remission of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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