2011 (6) TMI 433 - AT - Central Excise

Remission of Central Excise duty - rejection as appellants failed to intimate the jurisdictional Central Excise officer within the prescribed time limit about the fact of shortage of molasses to avoid physical verification - Held that - The weight and volume as recorded was based on determination by dip reading methods and said method also involve some approximation. This method is adopted inevitably and used for ascertaining the weight and evaporation loss and the Board has prescribed the maximum loss of 2% to be condoned. The denial of remission and consequent demand of duty are not justified on no intimation was filed by the appellant which was found to be factually wrong as this allegation has been contested by the assessee by producing evidence in the form of letters duly acknowledged by the jurisdictional Central Excise officer - in favour of assessee.

Summary

Issues:
1. Remission of Central Excise duty on molasses.
2. Failure to intimate jurisdictional Central Excise officer.
3. Denial of remission and imposition of penalty under Section 11AC and Rule 25.
4. Calculation of storage loss and remission entitlement.
5. Interpretation of Board's circular on storage loss condonation.
6. Justification of denial of remission and penalty imposition.
7. Methodology for determining weight and evaporation loss.
8. Validity of show cause notice and Commissioner's order.

Analysis:
1. The case involved an appeal against the Commissioner's order rejecting the remission of Central Excise duty on molasses by the appellants, who were manufacturers of VP sugar and molasses. The dispute arose when the Assistant Commissioner issued a show cause notice proposing duty rejection and penalty imposition due to alleged failure to intimate the jurisdictional Central Excise officer about molasses shortage. The Commissioner upheld the demand of duty, interest, and penalties, leading to the appeal.

2. The appellants contended that they had timely intimated the Central Excise officer about the shortage, supported by evidence acknowledged by the officer. The Commissioner's failure to address this crucial defense submission was noted. The appellants argued that losses due to evaporation were natural, and they followed proper procedures as per Board guidelines, which allowed condonation of storage loss up to 2%. The Commissioner's denial of remission was based on the argument that 2% loss could not be claimed as a matter of right without justifying natural causes.

3. The Show Cause Notice alleged non-intimation and proposed penalty under Section 11AC and Rule 25. The Commissioner's order was criticized for not considering the facts and circumstances of the case adequately. The appellants' periodic intimation of storage loss, below the 2% guideline rate, was emphasized. The judgment distinguished this case from previous rulings, highlighting the summer months' evaporation losses as a valid reason for the shortage.

4. The judgment emphasized that the denial of remission and duty demand was unjustified, as the weight and volume calculations were based on dip reading methods involving approximation. The Board's prescribed 2% maximum loss condonation was crucial in this context. The Commissioner's order was set aside, and the appeal was allowed, granting relief to the appellants in accordance with the law.

5. The judgment underscored the importance of considering the specific circumstances of each case when denying remission and imposing penalties, especially concerning natural causes like evaporation losses during summer months. The methodology for determining storage loss and the applicability of Board guidelines were pivotal in resolving the dispute between the appellants and the Commissioner.