TMI Blog2022 (9) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... have been followed by the appellant. It is not even stated in the impugned order that these two circulars were not applicable to the appellant. It is also noted that the MODVAT credit scheme was introduced in the year 1986 and CENVAT credit scheme is refined form of the said scheme. These circulars continued to hold field throughout till 09.07.2010. Observations made by the Commissioner (Appeal) in para 8 of the impugned order cannot be sustained for this simple reason. It is noted that substantial compliance with the circular of 2010 has been made by the appellant by reversing the CENVAT Credit on the inputs used in respect of the finished goods contained in the breakages. Thus, taking the note of the reversal made, the impugned order cannot be sustained. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 1167 of 2012 and Excise Appeal No. 1289 of 2012 - FINAL ORDER NO. A/85892-85893/2022 - Dated:- 27-9-2022 - MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) AND MR. AJAY SHARMA, MEMBER (JUDICIAL) Shri Rajesh Ostwal, Advocate, for the Appellant Shri N.N. Prabhudesai and Shri Sanjay Hasija, Superintendents, Authorised Representatives for the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3.2 Arguing for the appellants learned counsel submits that- The breakages amount reflected in Trial Balance of respective FY also includes breakages of duty paid so includes breakages of duty paid finished goods received from other units of the appellants. In this regard, Chartered Accountant certificates showing bifurcation of value of breakages of finished goods manufactured at the appellant's plant at Roha and duty paid brought from other locations and were meant for trading only. Demand in respect of breakages pertaining to duty paid goods of other units is not maintainable. Demand in respect of breakages on finished goods pertaining to the appellants Rona plant is not maintainable appellants have already reversed cenvat credit involved in such breakages. D.1 In view of the inherent difficulties face by the aerated water industry, CBEC vide Circular dated 8.9.1971 specifically provided that in respect of breakage of bottles of aerated water, the breakage upto 0.50% is allowed and the same can be written off in the accounts. The clarification provided under the aforesaid Circular dated 8.9.1971 was re-confirmed by the CBEC vide another Circular dated 17.9.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. Vs. CCE 2010 (261) ELT 567 (T) Pepsico India Holdings Pvt. Ltd. Vs. CCE 2013 (289) ELT 162 (T) Final Order No. 50355/2014 dated 29.1.2014 passed by the Hon'ble CESTAT, New Delhi in the case of Pepsico India Holdings Pvt. Ltd. Final Order No. FO/A/76439/2016 dated 21.12.2016 passed by the Hon'ble CESTAT, Kolkata in the case of Pepsico India Holdings Pvt. Ltd. Final Order No. FO/78666/2017 dated 22.12.2017 passed by the Hon'ble CESTAT, Kolkata in the case of Pepsico India Holdings Pvt. Ltd. Hindustan Coca Cola Beverages (P) Ltd. Vs. CCE 2009 (243) ELT 270 (T) Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE 2010 (253) ELT 642 (T) Hindustan Coca Cola Vs. CCE 2007 (220) ELT 908 (T) Kandhari Beverages (P) Ltd. 2008 (224) ELT 265 (T) Bharat Coca-Cola Bottling N.E. P. Ltd. Vs. CCE 2007 (216) ELT 548 (T) Suggestion by Ld. AR that the present appeal is not maintainable before the Hon'ble CESTAT in view of Section 35B(a) of the Central Excise Act, 1944, is incorrect and erroneous. 3.3 Arguing for the revenue learned authorized representatives while reiterating the findings recorded in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise authorities to make a visit for inspection of the same. The orders of the lower authority are set aside and appeals are allowed. 9.2 In another case as reported in 2010 (261) ELT-567, Delhi bench of Tribunal has held that the demands issued for duty on broken goods were confirmed by the lower authority and Commissioner(Appeals) as the appellants had not filed applications of remission of duty. They had mentioned the quantity of broken bottles in their monthly returns from time to time. The officers have also visited and examined the issue and the loss is less than the limit prescribed by the Board. The orders are set aside and the appeal is allowed. 9.3 Hence the said case laws are not relevant to the instant case. 10. In view of the introduction of CENVAT scheme and new Central Excise Rules, 2002, the appellant ought to have filed application of remission of duty which they have failed to do so. The Tribunal in their own case reported in 2009/245) ELT-167- Kol has allowed the benefits to the appellants on the ground that they have filed applications for remission. In other manufacturing plants/units were aware of the procedure for remission of duty on br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to by the authorized representative tribunal larger bench has observed as follows: 5. A plain reading of this Section (35B) indicates that all losses including the kind of loss mentioned in Rule 49 are covered under this Section, if the impugned order is passed by a Commissioner (Appeals) in respect of any loss that an assessee has claimed to have occurred, the Tribunal has no jurisdiction to hear an appeal arising out of it. 6. When a similar matter came up before the High Court of Judicature at Madras in a writ petition India Pistons Ltd. v. ACCE - 1987 (27) E.L.T. 651 (Mad.), the Hon ble High Court did not find fault with the Tribunal s decision that it lacked jurisdiction to deal with appeals arising out of an order passed by Commissioner (Appeals) pertaining to loss of goods. We are aware that the Hon ble High Court has not given any ruling on whether or not such a view of the Tribunal is correct or not. But did not find fault with it either. In the case of Lakshmiji Sugar Mills Co. Ltd. v. CCE [1991 (56) E.L.T. 629], the Tribunal held that it had no jurisdiction to hear appeals of this nature. The Tribunal relied upon the decision of the Madras High Court cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such remission is allowable within the permissible limit as per Board Circular. It is pertinent to mention that one cannot go beyond the scope of the Act or Rules made there under. In my considered view, the Board Circular is binding on the Revenue Officer as held by the Hon'ble Supreme Court in various decisions. In any event, I find that this issue is covered by various Case Laws as under: 3. Commissioner of Central Excise Vs. Pepsico India Holdings Pvt. Ltd. Order dated 21.12.2016, passed by the Hon'ble CESTAT, Kolkata. 4. Pepsico India Holding Pvt. Ltd. Va. Commissioner of Central Excise, 2013 (289) ELT 162 (Tri.). 5. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise 2010 (261) ELT 567 (Tri.). 6. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise, 2009 (245) ELT 167 (Tri.). 7. Commissioner Vs, Pepsico India Holding Pvt. Ltd. 2013 (287) ELT A129 CAL. 8. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise, 2006 (201) ELT 69 (Tri.). 9. Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. Commissioner of Central Excise, 2009 (243) ELT 270 (Tri.). 8. In view of the above discussion, the impugned ..... 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