TMI Blog2018 (9) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... l goods or reject, waste or scrap material are to be destroyed. As per 2003 Notification, presence of Central Excise Officer was a mandate at the time of such destruction. However, after the amendment in the Notification, if the said destruction is within the unit, the intimation thereof is required to be given to the Customs Authorities and if it is outside the unit, a permission of Customs Authorities is required. The fact still is abundantly clear that the duty shall not be leviable on the impugned goods, appellant being an EOU. It is also apparent from the Show Cause Notice itself is that the appellant has destroyed not only the final and expired goods but the raw materials as well, after taking those out from their premises but to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the supervision of Madhya Pradesh Waste Management Project, Pitampur District, MP which is an approved body appointed by the Pollution Control Board for destruction of hazardous waste. It was also mentioned in the said application that duty was paid on the said goods however the appellants were not aware about the Notifications Nos. 30/2015-CE and 34/2015-CE both dated 25.05.2015, in accordance whereof the appellants were not liable to pay the duty. After the destruction thereof, the refund of said duty was applied vide the said application. However, Department vide the Show Cause Notice dated 09.11.2017 had proposed the rejection on the ground that destruction was not carried out in the presence of Central Excise officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell. There has been no objection till date from the Revenue Department. The Order of rejection is accordingly prayed to be set aside and Appeal is prayed to be allowed. 5. Ld. DR while justifying the Order has impressed upon para 11 thereof submitting that the Adjudicating Authority has clearly explained the condition of Notification No. 22/2003 which stands amended vide Notification No. 30/2015 dated 25.05.2015 that where the destruction has to be carried out outside the unit, the same should be with the permission of the Customs Authorities. In the present case, the appellant has not obtained the said permission due to which the physical verification of the goods, procured under the said Notification and destroyed, could not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Madhya Pradesh Waste Management Project is an approved body appointed by the Pollution Control Board for destruction of hazardous waste. The invoices of the appellant while removing the goods for destruction from their unit showing the payment of duty is also an acknowledged fact. These admissions of the Department when reconsidered alongwith the Notification No. 30/2015, the fact still remains is that EOU is otherwise not leviable to duty but the same has been paid by the appellant. It is also not the case of the Department that the remnants, remains or scrap after such destruction is cleared by the appellant into domestic tariff area. Seeing from this angle also, the question of leviability of duty on the cleared goods does not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and as such cannot be denied on a mere procedural lapse on his part that too when it occurred due to no knowledge of the impugned Notification. 9. This Tribunal in a previous case C.C.E. Vs. JS Gupta Sons 2015 (318) E.L.T. 63 has appreciated a difference between substantive and the procedural lapse in following words: There are condition and conditions, some may be substantive mandatory based on considerations of policy, and some others may merely belong to the area of procedure. It will be erroneous to attach equal importance to the non-observance of all conditions irrespective of the purposes they were intended to serve. A distinction between the provisions of statute which are of substantive character and were built ..... X X X X Extracts X X X X X X X X Extracts X X X X
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