TMI Blog1990 (2) TMI 171X X X X Extracts X X X X X X X X Extracts X X X X ..... ore him under Section 35A(2) of the Central Excises Salt Act, 1944 as it stood then. The appellants had challenged the order in original of the Assistant Collector of Central Excise Bombay. By his order F.No. V(68) 18-69/77.2109 dated 21-3-1980, by which the refund claim dated 16-12-1977 of the appellants for a sum of Rs. 1, 20, 849.29 had been rejected on the ground that the duty paid on the product town gas at the time of its clearance from their factory was correctly paid. He further held that there is no provision in Central Excise law for refund of duty on transit loss on their product after its removal from the factory. He further found that the appellants had not put forth any legal basis on which their refund claim could be entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants submitted that the gas becomes goods only at the point of the consumers meter as the gas leaving at the factory is not useable on account of water vapours and moisture. Therefore, the value of product has to be at the point when it becomes goods and duty should be charged at that point only. In this connection he relied upon the rulings of Delhi High Court as reported in 1978 (2) E.L.T. J121 para 7 - Delhi Cloth Mills v. Ministry of Finance and 1989 (39) E.L.T. 689 (Tri.) = 1989 Vol. 21 ECR P. 222 Collector of Central Excise Allahabad v. General Cement Products which lay down the proposition that goods become dutiable only after undergoing the quality test. He further submitted that the goods i.e., gas has become marketable only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further he submitted that the Rule 9 of Central Excise Rules, 1944 clearly stipulated the time and manner of payment of duty. It clearly laid down that no excisable goods shall be removed from any place where they are produced for consumption until excise duty leviable thereon has been paid at such place and in such manner as prescribed in the Rules. There was nothing in the Excise rule to collect the duty at a point other than the place of removal from the place of manufacture. He submitted that the reliance of the citations had no bearing on this question raised in this appeal. He submitted that the liability of duty of carbon-dioxide manufacturing in factory was considered in the case of Punjab Breweries Ltd. v. Collector of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he consumer point and that quantity alone should be the guiding factor for levy of excise duty has no force. In this case the quantity has to be computed on the basis of the gas meter readings placed at the factory gate. The loss of gas in the pipe is no criteria for remission of duty under Section 5 of the Act. The procedure followed by Calcutta Collectorate relied on by Sh. J.S. Agarwal is no criteria for determining this case. The method which the Department has been following, is the correct procedure for the levy of excise duty in this case. We further note that the appellants had not raised these grounds before the Assistant Collector of Central Excise in their refund application and as such on this ground also the appeal should fail. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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