Custom, Excise & Service Tax Tribunal
M/S. Asianol Lubricants Ltd vs Commr. Of Central Excise on 7 November, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Excise Appeal No: 76750/2016
(Arising out of the Order-in-Appeal No.29-31/KOL-V/2016 Dated-26/07/2016 passed by the Commissioner of Central Excise (Appeal-I), Kolkata)
MRS. ARCHANA WADHWA, HONBLE JUDICIAL MEMBER
M/s. Asianol Lubricants Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise,
Kolkata-V
RESPONDENT(S)
APPEARANCE Sri K.K. Banerjee, Advocate FOR APPELLANT(S) Sri K. Chowdhury, Supdt. (A.R.) FOR THE RESPONDENT(S) CORAM:
MRS. ARCHANA WADHWA, HONBLE JUDICIAL MEMBER DATE OF HEARING: 07/11/2017 Date of Pronouncement:07/11/2017 FINAL ORDER NO.:F/O 77756/17 Per ARCHANA WADHWA After hearing both the sides, I find that the appellants final product as also the inputs which was issued from the stock, got destroyed in fire in the appellants factory on 6/05/2006. The said fact of the fire and the consequent destruction of the goods is not in dispute.
2. As the appellants were advised by the Central Excise authorities to reverse the CENVAT Credit in view of the facts and they deposited the same but subsequently claimed the refund. The original adjudicating authority did not allow the refund claim on the ground that their application for remission of duty is pending before the Commissioner. Vide a separate order, the demand for reversal of CENVAT Credit was also made and confirmed. On appeal against the said order, Commissioner (Appeal) rejected the appeals.
3. The main ground for not allowing relief to the assessee seems to be that their application for remission of duty is still pending before the Commissioner. It also stands recorded that the appellant has claimed the cost of their raw materials including the duty element from insurance.
4. The Ld. Advocate appearing for the appellant submits that having made the application for remission of duty in terms of Rule 21 of Central Excise Rules, he could not have done more than that and it was for the Commissioner to pass the order. Though the period of more than 10 years has passed, their application has not been decided by the Commissioner in which case the appellant cannot be penalised. He also relies upon various decisions of the Tribunal laying down that in such a scenario, the demand of confirmation of duty cannot be made against them.
5. For the insurance claim , Ld. Advocate submits that they have not claimed the duty element from the insurance and the findings arrived at by the lower authorities is factually incorrect.
6. Ld. D.R. has not been able to show me that the remission application filed by the appellant stands decided by the Commissioner.
7. I find that the unnecessary litigation is going on account of non action on the remission application by the Commissioner which could have been avoided had the Commissioner decided the appellants remission application.
8. Having said so, I set aside the impugned order and remand the matter to lower authorities. The Commissioner is also expected to dispose the remission application as soon as possible and preferably within a period of two months from today based upon which the original adjudicating authority would decide the appellants liability and their claim for refund of the deposited duty.
9. In as much as the matter stands remanded, the appellants grievance about the claim of duty from the Insurance company would also be examined. Therefore, the appeal is allowed by way of remand.
(Dictated and pronounced in the open Court) Sd/- 8/11/17 (ARCHANA WADHWA) JUDICIAL MEMBER k.b/-
Excise Appeal No: 76750/2016 4