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2023 (3) TMI 1069 - HC - Central ExciseCondonation of transit loss - shortage of quantity on account of transit/handling loss - Whether the condonation of loss of 1% on the basis of CBEC circular dated 12.02.1987 would cover the case of the petitioner and if that is not applied to the case of the petitioner whether the demand so raised can be sustained and, as such, the claim of the petitioner can be allowed? HELD THAT - The CBEC in its circular dated 29.11.1979 on due consultation with the Ministry of Law on the question of condonation of loss occurring due to natural or human causes in terms of Rule- 13 of the Central Excise Rules instructed that such losses are to be permitted and in each case of loss the claim should be decided on merit allowing remission to the extent the adjudicating officer is satisfied about the genuineness of the losses. The said circular has also taken note of the expression otherwise accounted for to the satisfaction of the Collector occurring in Rule-13 and while referring to the said expression it is clarified that the language used is of wide amplitude so as to take in all losses occurring whether due to natural or human causes - In the present case there being factual adjudication of occurrence of transit/handling loss after clearance from the factory to the post of export, thereby the order passed by the revisional authority disallowing the transit loss cannot sustain in the eye of law. On perusal of the order impugned it is seen that though aforementioned judgments cited by the petitioner have been taken note of by the revisional authority in paragraph 3.11 thereof, but the said judgments have not been considered nor discussed in the judgment itself. Without taking into consideration of the same, the revisional authority has observed that no condonation of losses can be allowed - the Government notes that there is no case for imposition of penalty as adjudicating authority has not given any finding on the penal action and straightaway imposed penalty. In SN. GONDAKAR VERSUS COMMISSIONER OF COMMERCIAL TAXES IN KARNATAKA, BANGALORE AND ANOTHER 1983 (7) TMI 281 - KARNATAKA HIGH COURT it has been held that consistency in the judicial administration should not ordinarily be sacrificed unless there is compelling reason. The need for consistency in approach and uniformity in the exercise of judicial discretion in respect of similar cases require that all similar matters should receive similar treatment except where the factual difference require a different treatment. Merely stating that the circular of the Commissioner is not applicable to the case can hardly be said to be a reason to be given by a quasi judicial authority. This Court sets aside the order dated 26.04.2010 passed by the revisional authority under Annexure-10 and the matter remitted back to the very same revisional authority to reconsider the same afresh by taking into consideration all the judgments cited before him and by affording opportunity of hearing to the parties. The writ petition is allowed.
Issues Involved:
1. Condonation of transit/handling loss. 2. Applicability of CBEC circulars and previous judgments. 3. Non-application of mind by the revisional authority. 4. Consistency in judicial decisions. Summary: Condonation of Transit/Handling Loss: The petitioner, a company engaged in the manufacture and sale of high carbon ferro chrome/charge chrome, sought to quash the order dated 26.04.2010 by the revisional authority denying condonation of a 1% transit/handling loss. The petitioner argued that the loss occurred due to handling and transit from the factory to the port and was within the permissible limit as per the CBEC circular dated 12.02.1987. Applicability of CBEC Circulars and Previous Judgments: The petitioner cited several judgments and CBEC circulars, including one dated 29.11.1979, which allowed condonation of losses due to natural or human causes under Rule 13 of the Central Excise Rules. The petitioner referenced judgments such as CCE&C, BBSR-I v. Ispat Alloys Ltd. and CCE&C Bhubaneswar-I v. Indian Metals & Ferro Alloys Ltd., where similar losses were condoned. The revisional authority, however, did not consider these judgments and relied on a letter dated 08.01.2003, which the petitioner argued was not applicable to their case. Non-Application of Mind by the Revisional Authority: The court observed that the revisional authority noted the judgments cited by the petitioner but did not analyze or discuss them in the order. This indicated a clear non-application of mind. The court emphasized that the revisional authority's conclusion was an outcome of non-application of mind and set aside the order dated 26.04.2010. Consistency in Judicial Decisions: The court highlighted the importance of consistency in judicial decisions, citing several Supreme Court judgments. It stressed that identical or similar cases should receive similar treatment to maintain certainty and uniformity in the law. The court noted that the revisional authority failed to respect the precedents set by higher authorities in similar cases. Conclusion: The court set aside the order dated 26.04.2010 passed by the revisional authority and remitted the matter back for reconsideration, directing the authority to take into account all judgments cited by the petitioner and provide an opportunity for hearing. The writ petition was allowed without any order as to costs.
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