2015 (11) TMI 900 - AT - Central Excise

Extension of the permission for storing the finished goods outside the factory premises as per the provisions of Rule 4(4) of Central Excise Rules, 2002 - whether the learned Commissioner was correct in rejecting the request for extension of permission to store the goods outside the factory premises - Held that - if both the field formations i.e. Range Superintendent as well as Jurisdictional Division Office recommend the case of the appellant as has been genuine one, it should have been considered in correct perspective by the office of the Commissioner of Central Excise. On perusal of the letter dated 26.12.2014 vide which the Commissioner has not granted extension of permission to store the goods without payment of duty, is a very casually worded and does not given any reason for rejection of the request. I find strong force in the contentions raised by the learned Counsel that in an identical set of facts in the case of Balkrishna Industries Ltd. (2011 (11) TMI 555 - CESTAT NEW DELHI) this Tribunal was considering the provisions of Rule 4(4) of the Central Excise Rules, 2002. The permission under sub-rule cannot be refused just because an assessee has been enjoying the same continuously for certain number of years. - the Revenue s plea that there is deferment of collection of duty in cases of outside storage of the goods under Rule 4(4) without payment of duty, is not correct. - letter dated 26.12.2014 issued from the office of the Commissioner of Central Excise, Customs & Service Tax, Wardha is unsustainable and liable to be set aside - Decided in favour of assessee.

Summary

Issues:
1. Maintainability of the appeal based on preliminary objection.
2. Rejection of extension of permission to store goods without duty payment.
3. Interpretation of Rule 4(4) of the Central Excise Rules, 2002.

Issue 1: Maintainability of the appeal based on preliminary objection:
The Assistant Commissioner raised a preliminary objection against the maintainability of the appeal, arguing that the decision of the Commissioner, as indicated in a letter, was not an appealable order. However, the Tribunal dismissed this objection based on the finding that the High Court had rejected a similar petition, stating that an alternative remedy was available under Section 35(2) of the Central Excise Act, 1944. Consequently, the Tribunal proceeded to hear and decide the appeal on its merits.

Issue 2: Rejection of extension of permission to store goods without duty payment:
The appeal challenged the rejection of the appellant's request for an extension to store finished goods outside the factory premises without duty payment. The appellant had sought this extension due to space constraints and for export purposes. The Superintendent of Central Excise and the Jurisdictional Asst. Commissioner had recommended the extension, finding the request genuine. However, the Commissioner's rejection lacked substantive reasoning and did not address the genuine circumstances presented by the appellant. The Tribunal noted that the rejection did not align with the provisions of Rule 4(4) of the Central Excise Rules, 2002, which allow for storage outside factory premises in exceptional circumstances. Citing relevant case law, the Tribunal emphasized that the exceptional circumstances must be considered based on the nature of goods and storage space shortage, rather than imposing a time limit on such permissions. Therefore, the Tribunal set aside the Commissioner's decision and directed the extension of permission until a specified date.

Issue 3: Interpretation of Rule 4(4) of the Central Excise Rules, 2002:
The Tribunal analyzed Rule 4(4) of the Central Excise Rules, 2002, which permits manufacturers to store goods outside factory premises without duty payment in exceptional circumstances. The rule mandates considering the nature of goods and storage space shortage. The Tribunal clarified that the exceptional circumstances should not be limited by time and must be evaluated based on specific factors like hazardous nature of goods or seasonal production requirements. It differentiated between outside storage under Rule 4(4) and warehousing under Rule 20, emphasizing that the former is an extension of factory premises. The Tribunal rejected the Revenue's argument equating outside storage with duty deferment, highlighting that duty becomes payable upon goods removal. This interpretation guided the Tribunal's decision to overturn the Commissioner's rejection and grant the extension of permission as per Rule 4(4) provisions.

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