TMI Blog2012 (10) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... M.H. Patil, Advocate, for the Appellant. Shri V.K. Singh, Addl. Commissioner, for the Respondent. [Order per : P.R. Chandrasekharan, Member (T)]. The appeals and stay applications are directed against the order-in-original No. 14/SR(14)/ Commr/RGD/09-10 dated 25-2-2010 passed by the Commissioner of Central Excise, Raigad. 2. The appellant M/s. Hanil Era Textiles Ltd. is a 100% EOU engaged in the manufacture of various Spun Yarns falling under Chapters 52 55 of the Schedule to the Central Excise Tariff Act. They were importing raw materials availing exemption under Notification No. 52/03-Cus., dated 31-3-2003 and also procuring indigenous materials without payment of duty under Notification No. 1/95-C.Ex., dated 4-1-1995 and its successor Notification No. 23/2003-C.Ex., dated 31-3-2003 for the purpose of manufacture of the aforesaid goods for export. The exemption is subject to the condition that the goods manufactured out of the raw materials are to be exported out of India and the appellant had executed a bond binding themselves to use the goods imported or procured indigenously for the purpose prescribed in the Notification and in default thereof pay the duty l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 28AB of the Act and under Section 11AA/11AB of Central Excise Act, 1944 and in terms of B-17 bond executed by them. The notice further also proposed to impose penalties on the appellant under Sections 112 114A of Customs Act, 1962 and Section 11AC of Central Excise Act, 1944 and under Rule 25 of Central Excise Rules, 2002. 2.5 The case was adjudicated by the jurisdictional Commissioner of Central Excise vide the impugned order and the Commissioner disallowed the benefit of exemption of duties under various Customs and Excise notification in respect of imported and indigenous goods claimed to have been damaged/lost in fire and ordered for recovery of Customs and Excise duty totalling to Rs. 1,32,51,116/- in terms of provisions of Section 28 of Customs Act, 1962 and under Section 11A of Central Excise Act, 1944 and in terms of B-17 bond executed by them. He also ordered for recovery of interest on duty amount under the provisions of Section 28B of the said Customs Act and Section 11AB of the Central Excise Act and Section 11AB of the Central Excise Act. He further imposed a penalty of Rs. 1,32,51,116/- under the provisions of Section 112 read with Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or destroyed by natural causes or by unavoidable accident during transport from the place of procurement to the manufacturers premises or from the manufacturers premises to the place of procurement or during handling or storage in the manufacturers premises. The ld. AR submits that in view of this condition, under the said Rules of 2001, even if the goods are lost or destroyed either in transit or during the handling or storage of goods in the manufacturer s premises, the duty liability cannot be remitted and the appellants are liable to discharge the duty liability in case the goods are not used for the intended purpose. He also relies on the judgment of the Tribunal in the case of Sandoz Pvt. Ltd. v. C.C.E., Belapur reported in 2009 (240) E.L.T. 300 (Tri.-Mumbai) wherein this Tribunal held the view that if goods are lost or destroyed by natural causes or by unavoidable accident they would not be deemed to have been used for the intended purpose and, therefore, pre-deposit of the dues adjudged was ordered by this Tribunal. He also relies on the judgment of the Tribunal in the case of HSBC Electronic Data Processing India (P) Ltd. v. C.C.E., Hyderabad reported in 2008 (232) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced by the Advocate for the appellant on the Sami Lab s case, it is seen that in that case also capital goods, raw materials work-in-progress and semi-finished goods, both imported and indigenously procured, were destroyed on account of fire. The appellant in that case, applied for remission of duty. The Revenue remitted the Customs duty involved in respect of imported materials, but did not remit the excise duty on indigenously procured materials on the ground that as per explanation to Rule 6 of the Central Excise (Removal of Goods at Concessional Rate of Duty for Manufacture of Excisable Goods) Rules, 2001, even if the goods are lost or destroyed on account of natural causes or unavoidable accident, it will be deemed that they have not been used for the intended purpose. In that case it was further contended that the raw materials had been issued for manufacture and, therefore, the Tribunal took the view that they have not been lost or destroyed either during transit or during the handling or storage and, therefore, the Tribunal allowed remission of duty holding that explanation to Rule 6 of the said Rules will not apply to the circumstances of this case. Similarly in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is not the situation in the instant case. When the department asked for data regarding the loss of goods, their quantity and value, duty involved, the appellant did not furnish the information in spite of a number of letters issued at periodical intervals during September 2003 to October 2003. They also did not comply with the summons issued by the department to the Chairman and the Excise Manager. This shows complete defiance of law on the part of the appellant. In these circumstances, it cannot be held that the ratio of the judgments in Mira Chemicals and I.G. Petrochemicals Ltd. case can be applied. On the other hand it is noticed that the ratio of the judgment of this Tribunal in the case of Sandoz Pvt. Ltd., supra would apply wherein this Tribunal ordered for pre-deposit of part of dues adjudged. 7. The ld. Advocate for the appellant also made a point that there is no limitation prescribed in law for claiming remission and, therefore, remission can be claimed at any point of time. We are not impressed with this argument. In a number of judgment, the Hon ble Apex Court had held that when the statute does not prescribe any time limit, then the action has to be initiated with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and Packing department 2,00,700 Kgs were not affected by fire but had smoke blackened only and hence, these goods were washed and then exported. The insurance company paid only washing charges and hence, the question of these materials having been lost and consequential duty on these goods does not arise. They further pointed out that of the balance 5,08,850 Kgs, non-dutiable goods viz., cotton and wool were 3,07,635 Kgs on which no duty is involved and after this quantity of goods which remain is 2,02,115 Kgs only. Only these 2,02,115 Kgs were affected by fire and they were sold as waste after payment of appropriate duty. Thus, it is evident that 2,02,115 Kgs of were not used for the intended purpose as they were lost which works out to roughly 30% of the total stock of goods. In the instant case, the total duty confirmed against the appellant is Rs. 1,32,51,116/- and 30% of the same works out to about Rs. 40 lakhs. Therefore, we direct the appellant to make a pre-deposit of Rs. 40 lakhs (Rupees forty lakhs only) within a period of eight weeks and report compliance on 22nd February 2012. On such compliance, the balance of dues adjudged shall stand waived and recovery thereof s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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