TMI Blog1983 (5) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants explained the losses stating that they are mainly due to different natural factors combined with human error in making entries in different records. The Asstt. Collector as well as the Deputy Collector did not accept this explanation. They, however, condoned the loss of some quantities, but in respect of the remaining, they directed the appellants to pay the duty. Feeling aggrieved by the 2 orders of the Deputy Collector and one order of the Asstt. Collector, the appellants preferred 3 separate appeals before the Appellate Collector of Central Excise, Calcutta who clubbed them together, the facts of the case and the submissions of the appellants being identical, and passed a common order. 3. The Appellate Collector found as per the loss/gain statement for the month of October 1976, there was a loss of 63.418 KL of HSD. Out of this total loss, there was a loss of 62.311 KL on 28-10-1976 alone. Similarly, during the month of March 1977, total loss was 62.071 K1 but the losses on 12-3-1977, 21-3-1977 to 25-3-1977 and 30-3-1977 were found to be abnormal. As regards the month of May 77, total loss was 22.650 KL and there was an abnormal loss of 18.244 KL on 16-5-1977 alone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oading tank is very frequently filled up for regular despatch and in course of the frequent transfer operations, dip of the tanks, both the mother tank and the batch loading tanks, is to be taken for a number of times in a particular day. Under the circumstances, the possibility of dipping error is very high, resulting in losses of products in accounting. Further, such recorded losses are always inclusive of other losses like dormant loss, evaporation loss, spillage loss, loss due to temperature variation etc. As regards the losses in May, 1977 Shri Venkataraman submitted that there was some water-cut after filling the tanks from the mother tank as recorded in the previous day and this water-cut, though recorded in the log book was not taken into account while preparing the monthly loss/gain statement. As a result, this water-cut was shown as loss in the loss/gain Statement. Finally, Shri Venkataraman submitted that the adjudicating authorities as well as the Appellate authorities have ignored the Board s instructions in not computing the losses on monthly basis. He, therefore, prayed for setting aside the orders under appeal. 8. Shri A.K. Saha, Sr. D.R., for the department, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viding for remission of duty of excise leviable on any excisable goods which due to any natural cause are found to be deficient in quantity. Sub-section (2) of this section reads as follows - Any rules made under sub-section (1) may, having regard to the nature of the excisable goods or of processing or of curing thereof, the period of their storage or transit and other relevant considerations, fix the limit or limits of percentage beyond which no such remission shall be allowed; provided that different limit or limits of percentage may be fixed for different varieties of the same excisable goods or for different areas or for different seasons." The First proviso to Rule 49 of the Central Excise Rules provides that the manufacturer shall on demand pay the duty leviable on any goods which are not accounted for in the manner specifically provided for in these rules, or which are not shown to the satisfaction of the proper officer to have been lost or destroyed by natural causes or by unavoidable accident during handling or storage in such store-room or other approved premises. From the provisions of the Act and the Rules, it is clear that in respect of losses which are due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so ascertained from time to time in respect of a particular consignment have to be totalled up and condoned upto the permissible limits. 13. According to the appellants, their tanks contain only one excisable category of petroleum product and the operations are almost continuous. They contended that the authorities below should have taken the monthly loss/gain and thereafter determined the net loss and if the net loss exceeds the permissible limits, the excess loss should have been charged to duty. There is considerable force in this contention. It is true that the administrative instructions issued by the Board may not be binding on the adjudicating authorities who perform quasi-judicial functions. But then, if the object of the administrative instructions is to achieve uniformity in the matter of condonation of evaporation and handling losses, it is desirable to have due regard to such administrative instructions by the adjudicating authorities. Excepting stating that certain losses on certain dates are abnormal, neither the Assistant Collector nor the Deputy Collector nor the Appellate Collector has given any reasons for not following the method or procedure laid down by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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