TMI Blog2007 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the Central Excise Rules, 1944 and Rules 10 and 21 of the Rules of 2001 and 2002 and imposing penalties of like amounts, besides ordering recovery of interest. 2. The appellant was engaged in the manufacture of aerated water and availing facility of Modvat credit of duty payable on these excisable goods. The authorities below found that the appellant did not give any proof to show that the goods in question had become "non-marketable". It was held that the parties had simply submitted that the goods were rejected as being unfit for consumption on account of being contaminated and had submitted in its report to show that they were in fact contaminated and hence not marketable. The authorities below also relied upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly excisable goods manufactured by the appellants. Before destroying the same, they were required to take permission from the competent authority, but no such permission was taken by them. They even did not send any intimation to the department regarding their disposal/destruction on account of non-marketability. If those goods were defective, non-marketable, the appellants could seek remission/abatement of duty under Rule 49 of the Rules but this course also they did not adopt. Therefore, their simple plea that the disposed of crates/bottles of aerated water on account of non-marketability or having used in the laboratory test, carries no legal value for want of corroboration from any evidence". 3. The learned counsel for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the instant case, the goods were admittedly not even entered in RG-1 Register. As such, no remission of duty was called for. In view of the above observations, we set aside the impugned order and allow the appeal with consequential relief to the appellants". 4. The learned counsel for the appellant also relied upon a decision of the learned Single Member in Excise Appeal No. 5536 of 2004 decided on 10-11- 2006 in a case where a manufacturer of aerated water had taken a similar plea of a portion of aerated water being drained out due to rejection and of over-filling and badly crowned bottle, following the ratio of the decision of the Tribunal in Hindustan Coca Cola Beverages Pvt. Ltd. (supra) held that the matter was squarely cove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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