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2015 (5) TMI 944 - ALLAHABAD HIGH COURT

2015 (5) TMI 944 - ALLAHABAD HIGH COURT - 2015 (321) E.L.T. 629 (All.) - Remission of duty - Whether the remission of duty involved on storage loss of molasses be allowed even without filing of remission application though prescribed specifically in the statute under Rule 21 of Central Excise Rules, 2002 - Held that:- Notification only prescribes outer limit up to which excisable goods can be said to have been lost in natural course, with reference to the particular good. Such prescription of th .....

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Only after an order is made granting remission in respect of the goods so lost due to natural circumstances, he could be exempted from payment of excise duty. - Since Tribunal did not consider this aspect, Matter remanded back - Decided in favour of Revenue. - Central Excise Appeal No. - 315 of 2006 - Dated:- 4-5-2015 - Hon'ble Arun Tandon And Hon'ble Arvind Kumar Mishra-I,JJ. For the Appellant : K. C. Sinha, S. P. Kesarwani For the Respondent : Rajendra Kumar Srivastava ORDER Heard Sri .....

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cating authority namely the Joint Commissioner, Central Excise, Meerut-I, vide the Order-in-Original No.05/JC/04 dated 30.03.2004 held that the assessee was liable for payment of ₹ 5,40,192/- under Section 11-A of the Central Excise Act, 1944 in respect of loss of 10803.84 quintals of molasses. Penalty of like amount was also imposed upon the assessee. Not being satisfied, the assessee filed an appeal before the Commissioner (Appeals) Meerut. The appeal came to be rejected under order date .....

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eedings. It has been held that in absence of remission, application having been made/having been granted by the competent authority in respect of molasses said to have been lost, for whatever reason, it may be, the order of the assessing authority had to be maintained. Not being satisfied, the assessee filed second appeal before the Tribunal which has been allowed under the order impugned dated 18.05.2006 observing that the impugned loss is within the condonable limit of 2% as specified as per t .....

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n noticed that the storage and movement of the molasses is controlled by the U.P. Excise Authority inasmuch as molasses is ultimately used for manufacturing of alcohol potable as well as non-potable. In view of the aforesaid finding, the Tribunal has set aside the order of the assessing authority as well as appellate authority. It is against this order of the Tribunal, the present excise appeal has been filed. Learned counsel for the department questioning the reasoning of Tribunal submitted tha .....

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rity as well as by the first appellate authority to the effect that the appellant had not made any application in respect of waiver/remission with regard to the manufactured goods said to have been lost in natural course. There is no reason for remission of the duty on the goods so lost by the Tribunal nor the Tribunal could have set aside the levy of penalty for the same reason. It is the case of the department that in every case where loss of excisable goods is within permissible limit or out .....

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trary after referring to the circulars dated 01.06.1989 and dated 21.09.1983 submitted that in the facts of the case, loss was within 2% permissible limit in respect of stored molasses, therefore, the order of the Tribunal may not be interfered with by this Court. Reference is also made to the judgment of the learned Single Judge of this Court in the case of Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. Union of India reported in 2013 (296) ELT page 150. We may record that the learned Single Judge .....

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e circulars very narrow. Therefore, the procedure for remission of excise duty prescribed under Rule 21 of the Rules is to be followed where it is being claimed for reasons other than those prescribed in the circulars. However, as regards 0.5% tolerance limit provided for aerated water it stands exempt on being certified by the Range Staff in terms of the circulars. The aforesaid circulars have the effect of impliedly reducing the quantity of aerated water produced by 0.5% of the monthly product .....

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ar good. Such prescription of the outer limit will not mean that the statutory provision for claiming such remission are to be given a go by. It is not open to the assessee to himself determine the remission because of alleged loss even if it is within the permissible limits. It is settled principle of law that if law requires something to be done in a particular manner it has to be done in that manner or not at all. Privy Council in Nazir Ahmad v. King Emperor; AIR 1936 PC 253 laid down the dic .....

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