TMI Blog2017 (9) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... aking notice of the facts and the circulars of the CBEC as well as the State Authorities under the relevant state laws, wherein a shortage up to 2% in the case of molasses is considered normal, it is fit and proper to allow this appeal by way of remand to the learned Commissioner to re-examine the matter of loss - Appeal allowed by way of remand. - E/1294 & 1295/2006-EX[SM] - A/71114/2017-SM[BR] - Dated:- 18-8-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Sambhu Chopra, Advocate, for Appellant Shri Sandeep Kumar Singh, Deputy Commissioner (AR), for Respondent ORDER Per: Anil Choudhary The appellants are engaged in the manufacturer of Sugar Molasses. Molasses occurring in the manufacture of sugar by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect the appeal. The appellants had, in the grounds of appeal before ld. Commissioner, urged that the OIO is bad for violation of natural Justice as no opportunity of personal hearing was granted. Further ground was raised that the appellant had informed the Revenue regarding the loss of molasses at relevant time, praying for remission of the wastage of molasses caused by natural and unavoidable causes for the sugar season October, 2001 to April, 2002, but the Department did not take any action on the request made for remission of duty involved, but proceeded against to demand duty on the alleged shortage of molasses. It was also contended that the remission application was pending with the Commissioner, Central Excise Meerut-I and had accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation have not been filed and allowed by the competent authority, jurisdictional authority would be justified in demanding the duty. This Tribunal held that the duty demand has been made for the reason that remission application is not found on record. This is wholly irrelevant for the question if the duty demand is sustainable. It was further observed that according to the statutory records maintained by the appellant, reason for shortages/natural loss, there is no material whatsoever indicating a contrary position that the goods in question were removed without payment of duty. This Tribunal also took notice that is the issue of normal storage loss and have accepted the impugned loss as within the condonable limit of 2%, both by the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imits. Further relying on the ruling of the Privy Council in the case of Nazir Ahmad Versus King Emperor; AIR 1936 PC 253 in which it was laid down that when a statute requires a thing to be done in a particular manner, it must be done in that manner or not at all and also observed that it is the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise, it only in the manner provided in the statute or rules. High Court had further observed that in the facts of this case, the assessee claims remission from excise duty on the goods stated to be lost in natural course, within the permissible limit, but however as per the circulars, he has to follow the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for remission. 6. Heard the submissions of both the parties and perused the facts on record. 7. To decide the issue in question, it is worthwhile to take notice of the provisions of Rule 21 Central Excise Rules, 2002, which are as under.- Rule 21 - where it is shown to the satisfaction of the Commissioner that goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal, he may remit the duty payable on such goods, subject to such conditions as may be imposed by him by order in writing. From the facts on record, I find that the Show Cause Notice have been issued under the misconception i.e. removal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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