9911796707
TMI Blog1999 (11) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Ld. Counsel submitted that the appellants were manufacturers of Caustic Soda falling under erstwhile TI 14B at the relevant time. During the course of manufacture of Caustic Soda Chlorine Gas is produced as a by-product and since demand for Chlorine Gas was limited, it had to be destroyed as it was hazardous for health. Alternatively, it has to be liquified or converted into Hydrochloric Acid, which again is not in demand to the extent it is produced. Since Hydrochloric Acid is highly corrosive and has to be stored in special rubber lined storage tanks which are liable to leak and its transport is problematic, appellants were compelled to destroy the Hydrochloric Acid produced by them at short notice on many occasions. 4. Ld. Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed by the appellants. On adjudication, by Order-in-Original dated 30-1-1982, the Asstt. Collector confirmed duty demands contained in ten SCNs amounting to Rs. 1,16,911.87. The Asst. Collector held that the appellants had destroyed Hydrochloric Acid within the factory in which it was produced without complying with the provisions of Rule 149. He also held that the provisions of Rule 173N had not been fulfilled by the appellants. Asstt. Collector observed that Rule 149 envisaged that the destruction should be made in the presence of the Central Excise Officers. Rule 173N further required prior intimation to be given to the proper Officer at least seven days in advance where a manufacturer intends to destroy any excisable goods. The Asstt. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for appellants argued that in the facts and circumstances of the case and in view of the nature of the goods involved, it was not possible for the appellants to give advance intimation with a duration of seven days on each occasion. It was for this reason that they had written to the Asstt. Collector on 2-3-1979 explaining their difficulties as to the storage and transport of Hydrochloric Acid produced by them and asking permission from the Asstt. Collector to destroy Hydrochloric Acid at very short notices. Ld. Counsel submits that the said letter and subsequent intimations to the concerned Central Excise Officers were not acted upon by the concerned Officers. In this connection, he refers to the endorsements made on the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on every occasion. He also drew my attention to the fact that having regard to the letter sent by the appellants on 2-3-1979 seeking permission to destroy Hydrochloric Acid at very short notices, it was for the concerned authority to give permission with such conditions as it may like for the destruction of the material as provided in Rule 149. 8. In the facts and circumstances of the case, ld. Counsel submitted that the confirmation of duty demand on the ground of the appellants not giving seven days advance notice was not justified and therefore, the impugned order may be set aside. 9. Ld. JDR, Shri D.K. Nayyar on the other hand submitted that the provisions of Rules 173N and 149 prescribing prior intimation of at least seven days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k relief before the Adjudicating Authority or a Court on that ground. Ld. JDR, therefore, submitted that the impugned order calls for no interference and Appeal may be rejected. 10. I have considered the submissions of both sides and perused the records. 11. The point for consideration is whether the requirement of seven days advance intimation was mandatory on each occasion. It is no doubt true that it is not open to an assessee to disobey the mandatory provisions of the statute or the rules on the plea of difficulties experienced by him in complying with the said provisions. In the instant case the question that requires consideration is whether Rule 149 as incorporated in Rule 173N prescribing seven days advance notice by a manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial order in writing prescribe conditions for such destruction. The rule thus vests a certain discretion in the Commissioner to exercise his power for according destruction of the excisable goods by the assessee. This discretion is to be exercised, having regard to, among other things, the nature of the goods - perishable/non-perishable, hazardous, non-hazardous, etc. Where the goods in question are of such a nature the disposal/destruction of which cannot be delayed without causing risk, the Commissioner or the proper officer has to exercise his discretion and allow the assessee to go ahead with its destruction/disposal at the earliest. In a case like the present one, where the assessee had informed the Asstt. Collector and sought permiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
