2011 (8) TMI 1253 - HC - Central Excise

Issues Involved:
1. Remission of central excise duty under Rule 21 of the Central Excise Rules, 2002.
2. Liability to pay central excise duty on the lost goods.
3. Validity of the show cause notice and subsequent orders demanding duty and imposing penalties.
4. Competence of the original authority to waive/condone excise duty.
5. Maintainability of the writ petition under Article 226 of the Constitution.

Detailed Analysis:

1. Remission of Central Excise Duty:
The petitioner, M/s. Hindustan Petroleum Corporation Limited, sought remission of central excise duty due to the loss of Superior Kerosene Oil (SKO) caused by torrential rains. The petitioner argued that Rule 21 of the Central Excise Rules, 2002 provides for remission of duty if goods are lost or destroyed by natural causes or unavoidable accident. The petitioner had initially applied for remission to the Assistant Commissioner of Central Excise, which was not the competent authority. The proper authority, the Commissioner of Central Excise, Guntur, returned the application advising the petitioner to re-submit it through the proper channel with supporting documents. The petitioner failed to do so, leading to the rejection of their remission application by the original, appellate, and revisional authorities.

2. Liability to Pay Central Excise Duty:
The petitioner was directed to pay central excise duty of Rs. 24,18,750/- on the lost SKO. The original authority confirmed the demand, stating that remission of duty had not been granted by the competent authority. The appellate and revisional authorities upheld this decision. The petitioner contended that the loss was due to natural causes and that they had applied for remission, but the application was returned due to procedural issues. The court observed that without remission granted by the competent authority, the petitioner was liable to pay the duty.

3. Validity of Show Cause Notice and Subsequent Orders:
The petitioner received a show cause notice proposing to demand central excise duty along with interest and penalty under Rule 25 of the Central Excise Rules, 2002. The petitioner argued that the show cause notice should only be issued after the disposal of the remission application. The court noted that the petitioner had not properly re-submitted the remission application as advised, and thus, the demand for duty was valid. The original authority's order was based on the fact that no remission had been granted, and this was upheld by the appellate and revisional authorities.

4. Competence of Original Authority to Waive/Condone Excise Duty:
The court highlighted that the original authority could not waive or condone excise duty without remission being granted by the competent authority. The original authority's decision was based on the absence of remission from the Commissioner of Central Excise. The court extracted relevant portions of the original authority's order, emphasizing that remission was not granted, and thus, the demand for duty was justified.

5. Maintainability of Writ Petition:
The respondents argued that the petitioner had not exhausted the alternative statutory remedy available with the Commissioner of Central Excise for remission of duty. The court agreed, stating that the petitioner should have re-submitted the remission application with the necessary supporting documents through the proper channel. The writ petition under Article 226 of the Constitution was deemed not maintainable as the petitioner had not followed the due procedure for remission.

Conclusion:
The court dismissed the writ petition, affirming that the petitioner was liable to pay the central excise duty in the absence of remission granted by the competent authority. The petitioner was advised to file an appropriate application under Rule 21 of the Central Excise Rules, 2002 for remission of duty if so advised. There was no order as to costs.

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