2016 (2) TMI 1029 - AT - Central Excise

Remission of duty - No physical stock - Held that - As the claim of remission duty was pending before the adjudicating authority, in that circumstances, the show cause notice was not required to issued by the appellant to demand duty. Further, I find that after rejection of the claim of remission of duty, no duty was demanded from M/s. Bhuna Co-op. Sugar Mills, the demand of duty from the appellant is not sustainable merely for the undertaking filed by the appellant at the time of the registration in the light of the decision this Tribunal in the case of Shetkari S.S.K. Ltd. 1994 (9) TMI 200 - CEGAT, BOMBAY Wherein it was held With the provisions of Rule 49 being in force and that the Tribunal being the creature of the statute, it is not open for the Tribunal to go beyond the scope of the statutory rules and when the rules do not provide for raising a demand for the molasses destroyed and that too with the permission of the department the demand raised and confirmed, cannot be sustained - Appeal allowed.

Summary

Issues:
Demand of duty on quantity of molasses; Liability of duty on transferred stock; Validity of show cause notice; Enforcement of undertaking at the time of registration.

Analysis:
1. Demand of Duty on Quantity of Molasses:
The case involved an appeal against an order demanding duty on a specific quantity of molasses transferred to the appellant. The appellant acquired the possession of a sugar mill under a sale agreement, and discrepancies arose regarding the duty liability on the stock of molasses. The official liquidator of the previous owner claimed remission of duty due to loss/damage/shortage of the stock. The duty demand was initially made on both the previous owner and the appellant. However, the Tribunal found that the duty demand from the appellant was not sustainable solely based on the undertaking filed at the time of registration.

2. Liability of Duty on Transferred Stock:
The appellant argued that the duty cannot be demanded based on the undertaking given at the time of registration. The Tribunal referred to a previous case where it was held that the bond/undertaking is not enforceable against the appellant. The duty liability cannot be imposed solely on the basis of the undertaking, especially when the official liquidator's claim for remission of duty was rejected. The Tribunal emphasized that the duty demand should be in accordance with statutory rules and contractual liabilities should be enforced through the competent court.

3. Validity of Show Cause Notice:
The Tribunal noted that the show cause notice demanding duty was issued before the rejection of the remission claim by the official liquidator. As the claim was pending adjudication, the issuance of the show cause notice to demand duty from the appellant was deemed premature. The Tribunal held that in such circumstances, the impugned order was not sustainable, and the duty demand from the appellant was unjustified.

4. Enforcement of Undertaking at the Time of Registration:
The appellant's liability to pay duty based on the undertaking filed at the time of registration was a key point of contention. The Tribunal ruled that the duty demand from the appellant was not valid solely on the grounds of the undertaking. The decision highlighted that statutory rules should guide duty demands, and contractual obligations should be enforced appropriately. Ultimately, the impugned order was set aside, and the appeal was allowed with consequential relief, if any.

In conclusion, the judgment addressed the issues of duty demand on transferred stock, the validity of the show cause notice, and the enforcement of the undertaking at the time of registration. The Tribunal emphasized the importance of following statutory rules and ensuring that duty demands are made in accordance with legal provisions rather than solely relying on undertakings.