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TMI Blog2015 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner is not an appealable order. 4. Learned Counsel brings to my notice that the Hon'ble High Court of Bombay, Nagpur Bench, in their oral order dated 23.01.2015, has rejected the petition of the assessee on the ground that there is an alternative remedy available on such issue. It is his submission that in view of this, the appeal may be heard and disposed of on merits. 5. Preliminary objection raised by learned A.R. needs to be dismissed as I find that the Honble Bombay High Court in Writ Petition No.8 of 2015 has recorded the statement of Senior Standing Counsel for the Central Excise Department as to there is an alternative remedy available to the petitioner under Section 35(2) of the Central Excise Act, 1944 and rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to store the goods outside the factory premises for two years, there is no objection or nothing objectionable undertaken by the appellant and the goods which were stored outside in a warehouse are situated just 500 meters away from the factory premises. He would submit that the Commissioner has not given any reason for not granting the extension of permission to store the goods without payment of duty. He would submit that an identical issue came up before this Tribunal in the case of Anutone Accoustics Ltd. vs. CCE Bangalore - 2010 (250) ELT 590 (Tri. Bang) and in the case Balkrishna Industries Ltd. vs. CCE - 2013 (297) ELT 257 (Tri. Del.) and the Tribunal held that request for extension of permission cannot be rejected on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds Circular No.610/1/2002-CX dated 01.01.2002 I find that the appellant before expiry of permission on 10.12.2014 had made an application for extension. The said application was vetted by the Superintendent of Central Excise and had recommended that the permission be extended as the request seems to be genuine and the appellant had fulfilled all the conditions as laid down by the CCE Nagpur in letter No. IV(10)30-29/2011/TECH/9075 dated 25.06.2014. The said recommendation letter of the Supdt. of Central Excise, Akola was considered by the Jurisdictional Asst. Commissioner and he also recommended for the extension of permission to store the goods without payment of duty outside the factory premises. 12. In my considered view, if both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the nature of the goods and shortage of storage at the premises of the manufacture where the goods are made, permit a manufacturer to store his goods at any other place outside the factory premises without payment of duty, subject to such conditions as he may specify. In this regard, sub-rule (4) is reproduced below :- Rule 4(4). - Notwithstanding anything contained in sub-rule (1), Commissioner may, in exceptional circumstance having regard to the nature of the goods and shortage of storage space at the premises of the manufacturer where the goods are made, permit a manufacturer to store his goods in any other place outside such premises, without payment of duty subject to such conditions as he may specify. Thus the words 'exceptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of the Revenue. The permission under sub-rule cannot be refused just because an assessee has been enjoying the same continuously for certain number of years. 6.The Revenues plea is that such outside storage facility under sub-rule (4) of Rule 4 continuously for several years amounts to enjoying the warehousing facility under Rule 20 of the Central Excise Rules. However, I find that this ground has not been taken in the show cause notice, as the show cause notice has been issued on the basis that the permission under Rule 4(4) can be granted only under the 'exceptional circumstances' and the said circumstances cannot be sort of perpetual and cannot continue beyond reasonable period. In view of this, at the adjudication stage, the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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