2011 (11) TMI 580 - HC - Central Excise

Violation of Notification No. 22/2003-Central Excise, dated 31-3-2003 - Clearance of goods from bonded warehouse - Held that - There is no revenue loss caused to the appellant inasmuch as, as on date the facts are not very clear. The question of revenue loss would arise only if the assessee had either not sent back the goods to the original manufacturer/supplier or had not received the replacement goods for the non-duty paid stock. while there may perhaps be a technical violation of the notification inasmuch as the goods were taken out of the bonded warehouse without payment of excise duty, but there was no clearance of the goods in the sense that they were put into the market. In any case, even if there is a technical violation of the notification, since there is no revenue loss as at present advised, we do not see any reason to entertain this appeal - no substantial question of law arises in this regard, particularly since the facts of the case have not yet been determined finally by the authorities and the matter pertains only to an order of remand to determine the facts. Decided against Revenue.

Summary

Issues:
Violation of Notification No. 22/2003-Central Excise - Permission for goods removal from bonded warehouse - Revenue loss determination - Technical violation of notification - Entertaining the appeal based on substantial question of law.

Analysis:
The case involves an appeal under Section 35G of the Central Excise Act, 1944 against a Final Order passed by the Customs, Excise and Service Tax Appellate Tribunal. The respondent-assessee, a 100% export-oriented unit dealing with bulk drugs, sought permission to remove defective goods from a bonded warehouse for replacement. Despite written requests to the appellant, the assessee proceeded to exchange the goods without awaiting a response. The appellant alleged a violation of Notification No. 22/2003-Central Excise, stating that goods could not be cleared without payment of excise duty and proper authorization.

The Tribunal remanded the case to verify if the defective goods were returned to the original supplier and if replacements were received, emphasizing the absence of revenue loss to the appellant. The Tribunal's order highlighted the technical breach of the notification due to goods removal from the bonded warehouse without duty payment, yet clarified that no market clearance occurred. The judgment acknowledged the lack of a substantial legal question pending final determination of facts by the authorities, leading to the dismissal of the appeal.

In conclusion, the High Court declined to entertain the appeal, citing the absence of a substantial legal question and the inconclusive nature of the case facts. The decision emphasized the technical nature of the alleged violation and the crucial aspect of revenue loss, which was deemed absent in the current circumstances. The ruling underscored the need for a definitive determination of facts before addressing legal issues, ultimately resulting in the dismissal of the appeal.