9911796707
TMI Blog1998 (4) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... . Appellants who are engaged in the manufacture of Caustic Soda, Caustic Soda Lye, Sulphuric Acid etc., all falling under Chapter 28 of the CETA, 1985 were by SCN dated 4-8-1987, asked why a demand of duty of Rs. 24,371/- should not be demanded for Hydrogen gas vented into the atmosphere during the period 1-5-1987 to 30-6-1987. The appellants contended that the gas in question had become unmarketable, being in excess of their requirement and the same had to be flared/vented into the atmosphere and as such they are entitled to remission of duty under Rule 49 of the Central Excise Rules, 1944. In support of their contention they relied upon the Board s clarification issued on 18-12-1975. In the adjudication proceedings, the Assistant Collecto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat remission of duty under Rule 49 could not be denied for reasons of lapses in procedure. He cited the following decisions in support of his contention :- (1) 1996 (82) E.L.T. 588 (Tribunal); (2) 1994 (73) E.L.T. 393 (Tribunal); and (3) 1987 (27) E.L.T. 701 (Tribunal). 6. The ld. DR Shri Madan argued that the impugned order suffers from no infirmity inasmuch as the Collector had clearly held that the appellants case was not covered by Rule 49 and the claim for upon by the appellants was not attracted in their case since had not given intimation about flaring of the gas as required under the said clarification. He submitted that even assuming that the clarification was applicable to their case, the appellants could not claim the be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d proviso to Rule 49(1) even to cases where gas has been vented/flared for any reason whatsoever . Therefore, the view taken by the lower authorities that the appellants case did not come within the scope of the said Proviso does not appear to be correct. If that be so the view taken by the lower authorities in not giving effect to the Board s clarification referred to above is clearly unsustainable in view of the series of decisions referred to by the ld. Counsel for the appellants which have consistently held that the excise officers are bound by the orders/clarifications etc. given by the Board. 8. On the second aspect as to whether the remission under Rule 49 could be denied on the ground of mere procedural lapses, the point for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural causes or by unavoidable accident during handling or storage in such store-room or other approved premises : Provided further that the proper officer may not demand duty due on any goods claimed by the manufacturer as unfit for consumption or for marketing subject to such conditions as may be imposed by the Collector by order in writing. 11. I also observed that in the present case, it is the excess gas which has been flared/vented as it could neither be consumed nor sold. The appellants case is based on Board s Circular which had clarified the Board s view that the venting or flaring for whatsoever reason could be covered by second proviso to Rule 49; whereas the department s own case is based on the wordings of the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods before clearance. Since the duty under Rule 49 was chargeable only on removal of the goods from the factory premises or from an approved place or storage, therefore, looking at it from a slightly different angle, the duty was not chargeable since the goods had not been cleared but destroyed by venting or flaring out, before such clearance. 18. I, therefore, agree with my learned Colleague that the substantive benefit, if otherwise due, was not deniable only account of minor procedural infractions. Since the goods had been admittedly duly accounted for in RG1 and in the very nature of things the gas could neither be stored or utilised for any other purpose and the appellants had no other alternative but to flare it, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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