9911796707
TMI Blog1989 (5) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... up action a show cause notice calling upon the appellants to show as to why appropriate duty leviable on the deficiency be not demanded and penalty be not imposed, was issued. In reply it was contended that the alleged shortage was actually the losses in weight of yarn which do occur in the course of manufacture and due to normal causes of evaporation and dryage, and hence condonable. However, the Assistant Collector after the usual Adjudication proceedings allowed the condonation of deficiency upto 2.5 percent and consequently confirmed the demand of duty at appropriate rates leviable on the deficiency beyond 2.5 percent but did not impose any penalty. Against the said order of the Adjudication the appellants filed their appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of 328 Hank SR should have been condoned, he cited the following case law - (i) Indian Oil Corporation v. Collector of Customs, Bombay, 1986 (25) E.L.T. 847. (ii) Caltex Oil Refining (India) Ltd. v. Union of India, 1979 (4) E.L.T. 581. (iii) Sialkot Industrial Corporation v. Union of India, 1979 (4) E.L.T. 329. (iv) Order No. 578/83-NRB, dated 6/7-10-1983 passed by the Tribunal in the case of M/s. Amitabh Textile Mills Ltd. v. C.C.E., Kanpur, 1987 (31) E.L.T. 597 (Tribunal). 4. To emphasise his contention Shri Chaudhary also submitted that Straight Real Hanks, i.e. to say 328 Hank S.R. in relation to which 7.70% loss was not condoned by the department were exempted from whole of duty under Notification No. 275/82 dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of each case. 8. In the case of Sialkot Industrial Corporation v. Union of India, supra, it was held by a Single Judge of the Delhi High Court that the expression lost or destroyed in Section 23 of the Customs Act, 1962 is used in the generic and comprehensive sense and not in a narrow sense. It postulates loss or destruction caused by whatsoever reason, whether theft, fire, accident including pilferage. In my considered opinion there can again be no quarrel on this proposition of law. Nor it was challenged by the department. 9. In the case of Indian Oil Corporation v. Collector of Customs, Bombay, supra, a claim for refund of excise duty purported to be under Section 70 of the Customs Act, 1962 which relates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for losses in excess of 1% can be rejected if in the considered opinion of the Customs House it cannot be considered to fall in the category of natural loss contemplated in the said section. To this, the Tribunal observed that though the quasi-judicial authority like the adjudicating authority is not bound by the circular instructions of the Board, there could be no objection to have regard to such instructions which are mainly intended to achieve uniformity in the matter of granting condonation of losses which are considered as losses due to natural causes. After stating so, the Tribunal concluded that the Board s circular clearly indicates, that, after taking into consideration the experience gained during the past several years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... weight on an average 2.6% per year was claimed and allowed, whereas in the present case the appellants are claiming condonation of loss in weight to extent of 7.07 and 7.70 and a part of it i.e. to say upto 2.5% has already been allowed by the authorities below. 12. Now on merits, the appellants as stated above are claiming the condonation of loss in weight of 7.07% in respect of 2/40 Hank CR and 7.70% in respect of 328 Hank SR and the authorities below have condoned the loss in weight upto 2.5% and consequently demanded excise duty at appropriate rates leviable on the deficiency beyond 2.5%. The claim of the appellants rests on the bare assertion, without any evidence oral or documentary, that the said loss in weight was due to evaporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation above 1% is made the officers concerned have to very closely scrutinize the case and satisfy himself that the claim is genuine, technical advice would also be sought. As observed in the case of Indian Oil Corporation v. Collector of Customs, supra, the adjudicating authority is not bound by such instructions, still there could be no objection to have regard to such instructions which are mainly intended to achieve uniformity in the matter of granting condonation of losses which are considered as losses due to natural causes, that is what actually has been done by the authorities below in the instant case. The Collector (Appeals) as stated above did ask the appellants at the time of personal hearing to produce any evidence in the form ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
