Customs, Excise and Gold Tribunal - Calcutta
Commissioner Of Central Excise And ... vs Ispat Alloys Ltd. on 12 October, 2001
Equivalent citations: 2002(149)ELT527(TRI-KOLKATA)
JUDGMENT
Archana Wadhwa
1. Being aggrieved with the order passed by the Commissioner (Appeals), the Revenue has preferred the present appeal. I have heard Shri D.K. Bhowmik, ld. JDR and Shri K.K. Acharayya, ld. Advocate. After rejecting the stay petition filed by the Revenue, I take up the appeal itself for decision.
2. The respondents removed 6714.8 MT of Ferro Alloys for export under bond. The allegation against the respondent is that they have failed to furnish the proof of export in respect of 45.892 MT and as such they were liable to pay duty amounting to Rs. 1,21,275/-, being the duty involved on the quantity short shipped. Accordingly, on the above basis, the Assistant Commissioner confirmed the demand against the respondents.
3. On appeal before the Commissioner (Appeals), the respondents took a number of pleas and attributed the shortages to the handling loss on account of Ferro Alloys being brittle in nature. They contended that the Ministry has already allowed a handling loss of one percent in respect of Ferro Alloys vide their letter dated 12.2.87. Inasmuch in their case, the transit/handling loss is only to the extent of 0.68%, the same should be condoned by the Revenue. They also submitted that there was negligence on their part and there is no findings by the Assistant Commissioner that the said quantum of Ferro Alloys has been diverted for home consumption.
4. Accepting the above contention of the respondents, the Commissioner (Appeals) has set aside the order of the Assistant Commissioner.
Hence the present appeal.
5. After carefully considering the submissions made from both the sides, I find that the Commissioner (Appeals) has mainly relied upon the Ministry's Letter dated 12th February, 1987. The said letter for better appreciation is reproduced below in its entirely:-
"To Shri A.K. Saha, Collector of Central Excise & Customs, Bhubaneswar.
Sub.: 100% EOUS-M/s Ferro Alloys Corporation Ltd., Randia - Manufacturing Charge Chrome - fixation of norms of handling and other losses-Regarding. Sir, The undersigned is directed to refer to your letter C.No. V(10)1-100% EOU-BBSR-86/1351A dated 9.1.87 on the above subject and to say that considering the facts reported in respect of Charge Chrome, a bulk item, the Board agree with your recommendation Transit/Handling cases upto 1% in case of charge chrome clearances from the factory to the stage of export, could be considered for condonation. Yours faithfully, Sd/- (Sandeep Joshi) UNDER SECY. TO THE GOVT. OF INDIA"
6. The reading of the above letter will show that keeping in view the nature of the final product, the Board has condoned the loss upto one percent. The Revenue's contention is that such a condonation by the Ministry was only in respect of one of the manufacturer i.e. M/s Ferro Alloys Corporation Ltd. and cannot be extended to the respondents. Shri Acharayya has referred to the Tribunals decision in the case of Indian Oil Corporation v. Collector of Central Excise reported in 1993 (66) ELT 464 (Tribunal), in support of his contention that the directions by the Board as regards condonation of losses have to be followed to achieve uniformity. It cannot be said that in respect of one unit similarly situate, the losses are condonable and in respect of other unit the losses are not condonable. I find a lot of force in the force in the above contention of the ld. Advocate. The Revenue (Appeals) in their memo of appeal is only on the point of extension of the said letter to the appellants. The said letter condones transit/handling loss upto one percent keeping in view and on consideration of nature of the products. The same product is involved in the present case also. As such, I do not find any justification for restricting the scope of the said letter only to M/s FACOL. The Commissioner has rightly adopted the norms set in the said letter and has rightly applied the same to the facts of the present case. Inasmuch as the loesses are less than 1%, I do not find any justifiable reason to interfere in the impugned order of the Commissioner (Appeals). Accordingly, I reject the appeal of the Revenue. Stay Petition also gets disposed of.
Pronounced in the open Court.