Custom, Excise & Service Tax Tribunal
M/S K.M. Sugar Mills Ltd vs Cce, Allahabad on 19 December, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
Date of Hearing/ decision 19.12.2011
For approval and signature:
Honble Shri Rakesh Kumar: Member (Technical)
1. Whether Press Reporters may be allowed to see
CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy
of the Order?
4. Whether Order is to be circulated to the Departmental
authorities?
Excise Appeal No. 2234 of 2011 with Excise Appeal No. 2924 of 2011
[Arising Order-in-Appeal No. 74-CE/ALLD/2011 dated 16.6.2011 passed by the Commissioner (Appeals) Customs & Central Excise, Allahabad]
M/s K.M. Sugar Mills Ltd. Appellant
Versus
CCE, Allahabad Respondent
Appearance: Rep. by Shri Bipin Garg, Advocate for the appellant.
Rep. by Mrs. R. Jagdev, DR for the respondent.
CORAM : Honble Shri Rakesh Kumar: Member (Technical) Order No. ________________ Dated :
Per Rakesh Kumar:
The appellant are engaged in the manufacture of sugar and molasses chargeable to central excise duty. In the course of audit one register of the appellant it was found that they have reported loss of 1860.7 qntls. of molasses during the period January 2005. Since no duty has been paid on this loss nor any remission application for remission of duty for this loss has been filed. A show cause notice was issued to the appellant for remission of duty amounting to Rs. 142344/- alongwith interest and imposition of penalty under Section 11AC. The duty demand was confirmed by the jurisdictional Assistant Commissioner vide Order-in-appeal dated 22.12.2008 alongwith interest and penalty of equal amount imposed under Section 11AC. The duty demand was confirmed on the ground that they have themselves have reported this loss but they have not applied for remission of duty on this loss and as such there is no order of competent authority regarding remission of duty. On appeal to Commissioner (Appeals), this order of the Assistant Commissioner was upheld. Against this order of Commissioner (Appeals), this appeal alongwith stay application has been filed.
2. Heard both the sides.
3. Shri Bipin Garg, ld. Advocate appearing for the appellant pleaded that the only point for issue as to whether the remission of duty on the storage loss can be committed without filing of remission application under Rule 21 of the Central Excise Rules. That the Tribunal has jurisdiction to hear this appeal as this is not a case of storage loss and this is not covered by the provision of Section 35B(1) of Central Excise Act. That the filing of remission application under rule 21 is not necessary for waiver of the demand on the goods lost during storage. That in this regard he relies upon judgement in the case of Transformer __ reported in 2010 (262) ELT 909. That an application for condonation of storage loss of molasses have been filed and no decision has been taken in respect of the same. That without filing the appeal, application for condonation of loss does not confirm the duty demand; that the appellant have a strong prima-facie case and hence requirement of pre-deposit of duty demand, interest and penalty may be waived for hearing of the appeal and recovery thereof is stayed.
4. Mrs. R. Jagdev, learned DR raised the preliminary objection that this matter pertain to condonation of storage loss of molasses during storage, the duty demand in respect of storage loss has since been passed by the Commissioner of Central Excise and appeal against the order of the Commissioner (Appeals) in accordance with the provision of Section 35F(1) would not lie before the Tribunal and be filed before the Joint Secretary (Revision Application). She therefore, pleaded that the Tribunal has no jurisdiction to hear this appeal.
5. I have carefully heard both the sides and perused the record. In this case, there is no dispute that the appellant had declared certain storage loss of molasses in their RG-I register. They however pleaded that they have submitted an application for condonation of the storage loss but without deciding that application the department has wrongly confirmed the duty demand on the ground that no application for remission of duty under Rule 21 of the Central Excise Rules has been filed. In my view, this is a case where the issue to be decided that duty on the goods lost during storage and since the impugned order has been passed by the Commissioner (Appeals), in view of the first proviso to Section 35B(1) of the Central Excise Act. The Tribunal would not have jurisdiction to decide this case. In view of this, the appeal as well as stay application cannot be entertained. The same is dismissed. The appellant at liberty to file an appeal and application before the appropriate forum.
(Pronounced and dictated) (Rakesh Kumar) Member (Technical) Pant 1