2022 (11) TMI 44 - HC - Central Excise

Remission of duty - Tobacco - Pan Masala - goods lying without any use since 2004 - goods are unfit for consumption or not - Rule 21 of the Central Excise Rules, 2002 - HELD THAT - As admittedly the goods being tobacco and pan masala are not fit for consumption since 2004 as they are lying without any use, the following interim order is passed in the interest of justice (i) The petitioner shall furnish the bank guarantee of Rs. 3 Crore of any nationalized bank in favour of respondent-the Principal Commissioner, Central GST and Central Excise, Vadodara-I within a period of four weeks from today. (ii) On furnishing such bank guarantee by the petitioner, without prejudice to the rights and contentions of both the sides, the respondent shall permit the petitioner to destruct the goods in question. Stand over to 24.11.2022.

Summary

Issues:
Challenge to show cause notice for Central Excise Duty and Cenvat Credit demand under Section 11A, rejection of remission application by Commissioner, Tribunal's direction to reconsider remission application, issuance of impugned show-cause notice during pendency of remission application reconsideration, permission to destroy goods during pendency.

Analysis:
The judgment revolves around a writ application challenging a show cause notice issued by the Principal Commissioner, Central GST and Central Excise, Vadodara. The notice demanded Central Excise Duty and Cenvat Credit under Section 11A of the Central Excise Act, 1944. The petitioner sought to challenge the legality and validity of the notice, highlighting the remission application filed in 2006, which was rejected by the Commissioner in 2017. The rejection was based on the grounds that the goods were not marketable due to a court order related to the brand name, leading to the remission application being rejected. This rejection was subsequently challenged before the Tribunal, which directed the Adjudicating Authority to reconsider the remission application, emphasizing that the malafide intention cannot be attributed to the appellant in such circumstances.

The Tribunal found that the Adjudicating Authority had erred in various counts, including suggesting repacking and sale of goods, which was beyond its jurisdiction. The Tribunal emphasized that the decision to market or export goods lies solely with the assessee and that the goods in question were unfit for marketing due to the court order. The Tribunal set aside the Commissioner's order and remanded the matter for reconsideration of the remission application. However, instead of reconsidering the application, the impugned show-cause notice was issued, prompting the petitioner to challenge this action.

During the hearing, the petitioner sought permission to destroy the goods, which had been lying unused since 2004 and had become unfit for consumption. The respondent objected, citing the pending show-cause notice and the potential remission of duty if the goods were destructed under Rule 21 of the Central Excise Rules, 2002. The Court, considering the circumstances, passed an interim order requiring the petitioner to furnish a bank guarantee and permitting the destruction of the goods in question. This interim order aimed to balance the interests of both parties while ensuring justice during the pendency of the case.

In conclusion, the judgment addresses the complex interplay between the remission application, show-cause notice, and the request to destroy goods during the legal proceedings. It underscores the importance of due process, jurisdictional boundaries, and equitable considerations in matters involving Central Excise Duty and Cenvat Credit demands, providing interim relief to the petitioner while upholding legal principles and procedural fairness.