2013 (11) TMI 1522 - CGOVT - Central Excise

Remission of duty - Confiscation of goods - due to such long storage of Gutkha lying loose, the same became unfit for human consumption and, thus, was not marketable - Held that - Letter dated 1-2-11 simply communicates the rejection of request by Deputy Commissioner. It does not say that Commissioner of Central Excise has rejected their request dated 23-4-10. So it implies that applicant s request dated 23-4-10 for remission of duty & destruction of goods is still pending and not finally disposed off by Commissioner. As regards letter dated 6-10-09 of Deputy Commissioner of Central Excise, the said letter conveys only refusal for destruction of goods for non-compliance of order-in-original dated 13-2-09. As discussed above the competent authority in this case is Commissioner of Central Excise and therefore final order of competent authority will settle the issue. Applicant should have approached the Commissioner for orders on their request dated 23-4-10 rather than filing appeal before Commissioner (Appeals). The appeal was not maintainable as the same was not filed against any order-in-original passed by authority lower than Commissioner of Central Excise. In this case the said letter dated 1-2-11 is a direction of Commissioner of Central Excise which cannot be contested before Commissioner (Appeals) and this authority. - Decided against assessee.

Issues:
1. Jurisdiction of appeal against the decision of the Commissioner of Central Excise.
2. Remission of duty and destruction of goods for goods claimed as unfit for human consumption.
3. Competence of the Central Excise Officers in remission of duty and destruction of goods.

Issue 1: Jurisdiction of appeal against the decision of the Commissioner of Central Excise

The case involved an appeal filed by the applicant against a letter dated 1-2-2011 issued by the Additional Commissioner, which conveyed the rejection of the applicant's request for destruction of goods. The Commissioner (Appeals) rejected the appeal, stating that it was beyond his jurisdiction as the decision was approved by the Commissioner of Central Excise. The applicant contended that the appeal should have been entertained by the Commissioner (Appeals) as the Commissioner of Central Excise did not act as an adjudicating authority. The Government observed that the appeal should have been filed before CESTAT against the decision of the Commissioner of Central Excise, upholding the rejection of the appeal by the Commissioner (Appeals).

Issue 2: Remission of duty and destruction of goods for goods claimed as unfit for human consumption

The applicant sought permission to destroy 15,800 kgs of loose gutkha, claiming it was unfit for human consumption due to long storage. The Additional Commissioner had directed the applicant to comply with the order-in-original dated 13-2-2009 before granting permission for destruction. The applicant's request for remission of duty and destruction of goods was rejected by the Deputy Commissioner, leading to the appeal. The Government noted that the applicant's request was still pending with the Commissioner of Central Excise, and the final decision of the competent authority would resolve the issue. The applicant should have sought orders from the Commissioner instead of filing an appeal before the Commissioner (Appeals).

Issue 3: Competence of the Central Excise Officers in remission of duty and destruction of goods

The relevant provision for remission of duty and destruction of goods specified the competent Central Excise officers based on the amount involved. In this case, as the amount exceeded Rs. 5,000, the Commissioner of Central Excise was the competent authority. The Government highlighted that the decision on the applicant's request for remission and destruction of goods rested with the Jurisdictional Commissioner of Central Excise. The letter dated 1-2-2011 from the Additional Commissioner did not indicate a rejection by the Commissioner of Central Excise, implying that the applicant's request was still pending. The final order of the Commissioner of Central Excise would resolve the issue, and the appeal before the Commissioner (Appeals) was deemed not maintainable.

In conclusion, the Government upheld the impugned order-in-appeal, rejecting the revision application. The applicant's request for remission of duty and destruction of goods was pending with the Commissioner of Central Excise, and the final decision of the competent authority would determine the outcome. The appeal should have been directed to CESTAT against the decision of the Commissioner of Central Excise, as clarified by the Government.

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