2017 (1) TMI 375 - AT - Central Excise

Maintainability of appeal - Held that - since lower authority had not decided the appeals and had ordered for transfer of the appeals to the call book to be recalled after the matter is decided finally in view of the pendency of the department s appeal before the Hon ble High Court at that time. Today, when the matter was called, Ld.Counsel appearing on behalf of the Respondent submitted that the said Appeal of the department has already been dismissed by the Hon ble High Court in their own case. Keeping in view the overall facts and circumstances of the case, as narrated above, this Appeal is also liable to be dismissed - appeal dismissed as not maintainable.

Summary

Issues:
1. Excise duty remission claimed on broken bottles.
2. Justification of quantity of damaged bottles.
3. Applicability of circulars regarding breakages.
4. Authority to remit duty on damaged goods.
5. Stay on recovery of levies imposed.

Analysis:
1. The case involved M/s.Pepsico India Holding Pvt.Ltd. claiming excise duty remission on 1,43,757 bottles and 5150 cases of Aerated Water due to breakage during storage. The Revenue contended that the Appellants failed to justify the quantity of damaged bottles through physical verification or suitable documents.

2. The Revenue argued that the Appellants did not keep the broken bottles for inspection, as required by circulars, and failed to substantiate the breakage claimed. The Appellants claimed the breakage was due to leak or burst, not handling, thus not falling within the tolerance limit of 0.5% breakage allowed by circulars.

3. Circulars emphasized the need for individual investigation and verification of breakages, which the Appellants did not fulfill. The Appellants claimed duty remission without proper evidence or verification, contrary to circular requirements.

4. The judgment discussed Rule 21 of Central Excise Rules, 2002, which empowers the Central Excise authority to remit duty on goods lost or destroyed. The Appellants were required to show goods were unfit for consumption before removal to claim remission, which they failed to do adequately.

5. The Tribunal stayed the recovery of levies imposed pending final settlement, considering the matter's pendency before the High Court. The Appellants' appeal was dismissed as not maintainable due to the High Court's dismissal of the Revenue's appeal in a similar case, leading to the dismissal of the present appeal.

This comprehensive analysis covers the issues of excise duty remission, justification of damaged bottles, circular applicability, duty remission authority, and the stay on recovery of levies imposed, as discussed in the judgment by Appellate Tribunal CESTAT KOLKATA.