TMI Blog2013 (8) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ature, has a retrospective effect - In case of breakage/destruction of final product, remission can be claimed under Rule 21 of Central Excise Rules, 2002, but the remission is granted subject to condition of reversal of CENVAT credit availed on the inputs. In this case, the applicant was required to file application for remission of duty, which he failed to do. As such, they rendered themselves liable for payment of duty along with interest and penalty - Decided against the Assessee. - F. No. 195/833/2010-RA - 881/2012-CX - Dated:- 7-8-2012 - Shri D.P. Singh, J. Shri Sanjeev Dahiya, Corporate Manager, Indirect Taxation, for the Assessee. Shri Rohit Dwivedi, Assistant Commissioner, for the Department. ORDER This revision application has been filed by the applicant M/s. Hindustan Coca Cola Beverages Pvt. Ltd., Ghaziabad, U.P. against the Orders-in-Appeal No. 239-CE/MRT-II/10, dated 23-7-2010 passed by Commissioner of Central Excise (Appeals), Meerut-II. 2. Brief facts of the case are that M/s. Hindustan Coca Cola Beverages Pvt. Ltd. is manufacturers of aerated water, mineral water and soda. Jurisdictional Central Excise Officers while conducting audit of the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place in the manner specified in the circulars and remission had been claimed within the tolerance limits prescribed. Therefore, since all the conditions specified by the circulars have been complied with, remission cannot be denied as the repetitive issue. 4.4 The Commissioner (Appeals) has erred in confirming demand of duty on the ground that the applicants have not followed the procedure envisaged in Chapter 18 of the C.B.E. C. Manual. It is submitted that the process of destruction, as set out in Chapter 18 of the C.B.E. C. Manual, is applicable only in cases where the manufacturer intends to destroy goods and seek remission of duty payable thereon on the ground that such goods have been rendered unfit for consumption or for marketing. However, in applicant s case, the aerated water got wasted due to bursting of bottles in bonded godown or due to breakage of bottles during loading/unloading. Thus, neither the applicants were required to follow the said procedure nor was it possible for them to follow the same. 4.5 The Commissioner (Appeals) erred in not applying the order of Central Government passed under Section 35EE on a revision application of the applicant in an id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Circulars No. 1D/3/70-CX 8, dated 8-9-1971 and further amendment vide, Circular No. 261/1D/75-CX 8, dated 17-9-1975, wherein C.B.E. C. has fixed the tolerance limit of 0.5% in respect of breakage of aerated water of bottles after the stage of filling. The relevant portion of the Board s Circular, dated 8-9-1971 are reproduced below for ready reference - After careful examination of the matter, it has been decided that such breakages upto 0.5% may be allowed to be written off the accounts. Case should be taken to see that this limit is not cited upon as a matter of course, and each individual case is properly investigated by the range staff and cases where the loss exceeds 0.5% submitted to the Assistant Collector for adjudication on merits . C.B.E. C. further reconsidered the issue and clarified the same vide another Circular, dated 17-9-1975. The relevant portion is reproduced below : The tolerance may be calculated on monthly basis and the adjustments made at the end of the month . From the perusal of the above circulars, Government observes that the breakages upto 0.5% can be written off on a monthly basis in the accounts subject to the satisfaction of the range ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s broken/destroyed then remission can be claimed and if the bottle (input) is written off by the assessee as destroyed, the same is required to be dealt with as per the provisions of Rule 3(5B) of CENVAT Credit Rules, 2004. 3. In view of above, the application of the letters/instructions quoted in para 1 above, in the said judicial pronouncements, without recourse to the aforesaid provisions of law, is therefore per incuriam. Necessary action may be taken to safeguard revenue. Nevertheless, to avoid such disputes in future, it is stated that the instructions/letters quoted in para 1 above have no relevance in the present CENVAT scheme, and the instructions stand rescinded. From perusal of above provisions, it is evident that in case of breakage/destruction of final product, remission can be claimed under Rule 21 of Central Excise Rules, 2002, but the remission is granted subject to condition of reversal of CENVAT credit availed on the inputs. In this case, the applicant was required to file application for remission of duty, which he failed to do. As such, they rendered themselves liable for payment of duty. 10. The order of Government of India relied upon by the applicant i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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