2015 (2) TMI 963 - AT - Central Excise

Waiver of pre deposit - duty on breakages of bottles while handling - Held that - Appellants are manufacturer of aerated waters as seen from para-14 of the OIO, it is stated that percentage of breakages was 0.45% which is well below the limit of 0.5% prescribed by the Board's circular dt. 8.9.1971 and 17.9.1975. The adjudicating authority has demanded duty only on the ground that the appellants have not followed the remission procedures. Following the ratio of judgement of the Hon'ble Allahabad High Court in Hindustan Coca-Cola Beverages Pvt. Ltd. (2013 (4) TMI 83 - ALLAHABAD HIGH COURT) and also Tribunal's decision (2009 (7) TMI 1135 - CESTAT NEW DELHI), I find that appellants have made out a prima facie case for waiver of predeposit. In view of the above discussion, I waive the requirement of predeposit of duty, interest and penalty and stay its recovery till disposal of appeal. - Stay granted.

Summary

Issues:
1. Duty demand on breakages of bottles during manufacturing of aerated water.
2. Interpretation of Board's circulars regarding the percentage of breakages for duty payment.
3. Comparison of case laws cited by both parties.
4. Requirement of seeking remission of duty on breakage before clearance.
5. Applicability of previous judgments on the current case.

Analysis:

1. The case involved a dispute regarding the duty demand on breakages of bottles during the manufacturing of aerated water classified under Chapter 22 of the CETA'85. The adjudicating authority confirmed the demand of duty amounting to &8377;11,82,246/- along with a penalty and interest, which was challenged by the appellants before the Commissioner (Appeals).

2. The appellant relied on Board's circulars dated 8.9.1971 and 17.9.1975, stating that if the percentage of breakages is below 0.5%, the assessee was not required to pay duty. Additionally, the appellant cited the judgment of the Hon'ble High Court in the case of Hindustan Coca-Cola Beverages Pvt. Ltd. and various Tribunal decisions to support their argument.

3. On the other hand, the respondent reiterated the findings of the impugned order and the adjudication order, emphasizing the requirement for seeking remission of duty on bottle breakages before clearance. The respondent also cited relevant case laws such as Kesar Enterprises Ltd. Vs CCE Meerut and Virat Crane Agri-Tech Ltd. Vs CC & CE Guntur to counter the appellant's arguments.

4. After hearing both sides, the judge noted that the appellants were manufacturers of aerated waters, with the percentage of breakages being 0.45%, below the 0.5% limit prescribed by the Board's circulars. The judge considered the judgments of the Hon'ble Allahabad High Court and various Tribunal decisions, concluding that the appellants had a prima facie case for waiver of predeposit. As a result, the judge waived the requirement of predeposit of duty, interest, and penalty, staying its recovery until the disposal of the appeal.

5. In the final decision, the judge allowed the stay application, indicating that the appellants were not obligated to pay duty based on the breakages of bottles, as the percentage was within the permissible limit as per the relevant circulars and legal precedents cited during the proceedings.