TMI Blog2015 (10) TMI 2613X X X X Extracts X X X X X X X X Extracts X X X X ..... evision disposed off - decided against assessee. - F.Nos. 198/51/12-RA and 195/286/12-RA - 146-147/2015-CX - Dated:- 30-10-2015 - Ms. Rimjhim Prasad, Joint Secretary Shri Rajesh Kumar Sharma, Assistant Commissioner, for the Department. Shri G.K. Mahajan, Advocate, for M/s. S.C. Kamra Co., Advocates Solicitors, for the Assessee. ORDER These revision applications are filed by the Commissioner of Central Excise, Meerut-I (hereinafter referred as Department Applicant) and M/s. Upper Doab Sugar Mills (hereinafter referred as Applicant) against the Orders-in-Appeal passed by the Commissioner of Central Excise (Appeals), Meerut-I with regard to Orders-in-Original passed by the Additional Commissioner, Central Excise Division Meerut-I as detailed in table below : Sl. No. RA File No. Name of the Applicant O.I.A. No. date O.I.O. No. date 1. 198/51/12-RA CCE, Meerut-I 69-CE/MRT-I/2011, dated 24-11-2011 17/ADC/ MRT-I/2010, dated 27-8-2010 2. 195/286/12-RA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal before Commissioner (Appeals) who vide Order-in-Appeal No. 69-CE/MRT-I/2011, dated 24-11-2011 upheld the demand of duty ordered by adjudicating authority and set aside the penalty. 4. Being aggrieved by the impugned Order-in-Appeal, the applicant and department applicant have filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 Grounds in respect of F. No. 198/51/12-RA filed by the department : 4.1.1 That the Board Circular F. No. 261/15CC/1/80-CX 8, dated 6-2-1982 mandates for the party to ensure that the storage tank is safe and secure so as to avoid losses of Molasses. That the applicant was required to take all reasonable steps to safeguard the Government revenue involved on the goods produced and liable to pay duty which they failed to do. That the provisions of Rule 25 of Central Excise Rules, 2002 are squarely applicable on them. 4.1.2 That the Commissioner (Appeals) has not disputed the payment of duty on the goods destroyed. That in the following decisions, the Hon ble Tribunal has held in the case of Dhillon Kool v. CCE - 2000 (120) E.L.T. 81 (Tribunal) that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es require the manufacturer or producer of excisable goods to clear the goods from the place of manufacture by paying excise duty and the duty has to be self-assessed by the manufacturer or producer. The duty has to be paid on monthly basis by 5th or 6th of the next month, as the case may be. 4.2.3 That the Commissioner (Appeals) failed to appreciate that the scheme of Rules 4, 6 and 8 of Central Excise Rules, 2002 requires physical removal of excisable goods from the factory or the place of manufacture. The Hon ble Supreme Court in the case of J.K. Spinning and Weaving Mills Ltd. v. Union of India - 1987 (32) E.L.T. 234 (S.C.) held that the provisions of Rules 9 and 49 of erstwhile Central Excise Rules, 1944 contemplate a physical and actual removal of goods from a factory and not deemed removal from the factory or any other place or premises of production. Since, the molasses weighing 39,282.40 quintals were lost admittedly due to bursting of steel tank No. 5, there was no stock of excisable goods (molasses) that had actually been physically removed to call for compliance of Rules 4, 6 and 8 of Central Excise Rules, 2002. In the absence of physical removal of goods, the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd after rejection of remission application by the competent authority was an inevitable fall-out and unless and until the proceedings of demand were stayed, there was no illegality involved in the demand confirmed by the adjudicating authority. 4.2.6 That the Commissioner (Appeals) has not considered the request made by the applicant vide their letter dated 27-4-2011 to keep the appeal proceedings in abeyance till the appeal filed before the Tribunal in the remission proceedings was decided by the Tribunal. The Commissioner (Appeals) has not dealt with this request at all in the impugned order and as such the order is a non-speaking order and deserves to be set aside. 4.2.7 That the Commissioner (Appeals) failed to appreciate that in the case of applicant itself, the predecessor Commissioner (Appeals) under the similar situations have held that since the appeal filed by the applicant before the Hon ble CESTAT on the point of remission of duty was pending before the CESTAT, the adjudicating authority ought to have kept the case in abeyance till the decision of the Hon ble CESTAT on the remission issue. On this ground, the Commissioner (Appeals) ought to have remanded the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attended the personal hearing on behalf of the applicant who also reiterated the grounds of revision application. Further submitted as under : - 5.1 That the remission application filed by the applicant under Rule 21 of Central Excise Rules, 2002 was turned down by the jurisdictional Commissioner of Central Excise, Meerut-I in 2010. That the applicant has challenged the order by filing an appeal before the CESTAT, New Delhi. That the appeal has been registered as Appeal No. E/3442/2010-DB. That the appeal is still pending and has not been listed for hearing before the Division Bench of the CESTAT, New Delhi. 5.2 That the appeal filed by the applicant in the remission case is sub judice, the present revision application may be kept in abeyance till the remission matter is decided by the Tribunal. The applicant relied upon the following case laws : - Upper Doab Sugar Mills v. CCE, Meerut-I - 2004 (167) E.L.T. 453 (Tri.-Del.) Rosa Sugar Works v. CCE, Lucknow - 2001 (132) E.L.T. 323 (Tri.-Del.) Triveni Engineering Industries Ltd. v. CCE, Meerut-I - 2002 (146) E.L.T. 580 (Tri.-Del.) CCE, Ahmedabad v. Roopalee Dyg Ptg. Works - 2008 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed by the Additional Commissioner, Central Excise, Meerut-I who has confirmed the demand subsequent to Commissioner s order dated 15-7-2010 that is not stayed by any higher authority. 9. From the above, Government finds that it is an undisputed fact that in the present case the loss of impugned goods has occurred and that the issue of remission of duty has already been settled by the Commissioner s order dated 15-7-2010. The short point for consideration in revision is whether the demand of loss of goods has been rightly confirmed and whether penalty under Rule 25 ibid is imposable or not. 10. Government notes that the applicant s contention that Rules 4, 6 8 ibid requires physical removal of goods therefore no duty is demandable on the loss of impugned goods is also not tenable as the duty of excise is levied and collected on goods manufactured in India i.e. it is linked to the production of goods and is payable at the time of removal. While duty is chargeable under Section 3 of the Central Excise Act, 1944, its payment is deferred till removal of goods under Rule 8 ibid. Removal can be by actual movement of goods, by destruction, for further use within factory et ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is stage. In this regard the Commissioner (Appeals) has given a specific pleading that this contention does not have any merit as the confirmation of demand after rejection of remission application was an inevitable fall out thereof unless and until proceedings of demand are stayed, there was no illegality in confirming the same . Government also finds that the facts of the case laws relied upon by the applicant in support of their contention are different from their present case. 14. As the remission claim of the applicant already stands rejected by an order which holds grounds as there is no stay or final order of any higher appellate authority, the demand confirmed on the loss of goods consequent to rejection of such claim will also hold ground. Government therefore finds that there is no infirmity regarding confirmation of demand of ₹ 30,34,566/- under Section 11A along with interest under Section 11AB of the Act and it is rightly upheld by Commissioner (Appeals). 15. Government further observes that the Department has challenged the impugned order of Commissioner (Appeals) in setting aside the penalty equivalent to the demand of duty under Rule 25 of the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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