Customs, Excise and Gold Tribunal - Calcutta
Commr. Of Central Excise And Customs, ... vs Indian Metals And Ferro Alloys Ltd. on 3 December, 2007
Equivalent citations: 2008(127)ECC53, 2008(153)ECR53(TRI.-KOLKATA), 2008(224)ELT65(TRI-KOLKATA)
ORDER Chittaranjan Satapathy, Member (T)
1. Heard both sides in respect of this appeal filed by the Department and the Cross Objection filed by the respondents. The impugned goods were lost on account of theft after depositing in the warehouse of the respondents but before clearance for home consumption on payment of duty. The original authority has confirmed the duty demand whereas the lower appellate authority has set aside the duty demand.
Hence the present appeal and the Cross Appeal.
2. After hearing both sides and perusing the case records, we find that Section 23 empowers the Assistant/Deputy Commissioner to remit duty on goods lost (other than as a result of pilferage) or destroyed. Since in the present case, the goods have been stolen, they have to be treated as lost by was of pilferage and hence the remission cannot be granted under Section 23. Consequently, the impugned order passed by the lower appellate authority is not correct and legal and we set aside the same and allow the Department's appeal.
3. In the Cross Objection, the respondents have challenged the quantification of duty amount as well as the rate of duty and the classification applied. The lower appellate authority did not go into the issue as he has allowed the remission. In view of our decision as above, we direct the lower appellate authority to decide on the quantum of duty to be paid by the respondents deciding on the dispute of classification and rate of duty in respect of the impugned goods, raised by the respondents before him earlier.
4. For this limited purpose, the matter is remanded to the lower appellate authority who shall allow a reasonable opportunity of hearing to both sides before passing a fresh order. The appeal and cross objection are disposed of in the above terms.
Dictated and pronounced in the open Court.