9911796707
TMI Blog2002 (10) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... bye-product. On 10-7-1995 they approached the jurisdictional Assistant Commissioner, Thanjavur seeking permission to store molasses in kutcha pits within the licensed premises without payment of duty on the ground that their storage capacity in steel tanks is 13,000 MTs. The Assistant Commissioner, vide his letter dated 28-7-95 addressed to the appellants granted permission under Rule 173H for storage of duty paid molasses in kutcha pit within the licensed factory premises. Vide said letter the appellants were clearly instructed that subsidiary invoices and a stock register has to be maintained for clearance of the duty paid molasses from the kutcha pits and the valuation rules in force should be taken into account for arriving at the assessable value of the molasses for payment of duty. Thereupon the assessee vide their letters dated 31-7-95 and 22-11-95 addressed to the Asstt. Commissioner stated that since the market value of molasses is very less compared to their last sale and since there was no demand for molasses at that time, they were provisionally debiting in the PLA under protest based on the last sale value basis. They had also stated in the said letter that if the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place or premises specified under Rule 9 or removed from a store room or other place of storage under Rule 47. (d) The invoices issued at the time of storage in kutcha pits indicate that they were for storage of molasses under kutcha pits under protest whereas the sales invoice subsequently raised at the time of actual sales are at the rates approved by the State Sugar Mills Federation. (e) The appellants did not appeal against the order of the Assistant Commissioner granting permission to store duty paid molasses, since the said order was a cryptic order and not a speaking order. 3. Shri V.P. Namasivayam, learned Consultant, for the appellants invited our attention to the letter dated 29-12-1999 addressed to the Assistant Commissioner of Central Excise, Tanjavur wherein the appellants had requested for permission to destroy those quantity of molasses stored in kutcha pits as the Tamil Nadu Pollution Control Board has asked them to destroy the molasses and close the earthern pits immediately. They have also sent a reminder dated 14-8-2000 to the Assistant Commissioner, but no response has been received from him. He also referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the taxable event is manufacture or production of excisable article, the duty can be levied and collected at a later stage for administrative convenience. It was also held that recovery of duty according to "date of removal" does not make removal to be the taxable event for Central Excise Rule 9A. It was also held that when the goods were unconditionally exempted from duty on the date of manufacture, but were dutiable on the date of their removal, they would be liable to duty because on the basis of Rule 9A of the CE Rules, 1944, the Excise authorities are within competence to apply the rates prevalent on the date of removal. He also invited our attention to the letter bearing OC No. 1149/99, dated 16-12-99 addressed to the Chief Executive of the appellants by the Range Supdt. wherein inter alia the Supdt. had informed them that request for remission of duty would not be considered and they were advised to construct one more steel tank. It was also made clear in the said letter that in the absence of any provision in the Central Excise Act or the rules made thereunder for refund of duty, recommendation for refund of duty cannot be made to the Assistant Commissioner and in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tric tonne sold to one of their customers and market value of molasses is very less compared to last sale and they are provisionally debiting in the PLA account "Under Protest" @ last sale value. In the said letter they also stated that if the sale proceeds is less at the time of actual disposal, the excise duty debited in the PLA has to be adjusted on the future sale of molasses. We also observe from the records that the Supdt. of Central Excise by his letter dated 16-12-99 addressed to the Chief Executive of the appellants-company clearly stated that there was no provision either under Central Excise Act or the rules made thereunder for refund of duty in such cases and hence he cannot recommend their case for refund of duty. For convenience of reference this letter of the Supdt. of Central Excise is extracted herein below : "You were permitted to store the molasses after payment of duty in kutcha pit since difficulties were expressed due to shortage of sufficient storage space in your factory for molasses as there was no provision to store non-duty paid molasses in kutcha pit. In this connection your attention is invited to this office letter OC No. 363/98, dated 6-3-98 wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spute that the appellants were instructed in unambiguous terms that they were permitted to store the molasses in kutcha pits after payment of duty at the rate applicable at the relevant time. The claim of the appellants is that because there was less demand for molasses and that rate of duty at a later point of time was less, they have paid duty under protest and hence they are eligible for refund. This plea has no substance in the facts and circumstances of this case because duty was paid at the rate applicable at the relevant time and it was the duty paid goods which were removed to kutcha pits and since the rate of duty at a later point of time is stated to have come down and simply because they wrote a letter that duty has been paid under protest and payment of duty already should be treated as payment of duty under protest, that cannot be a reason for allowing refund. This is not a situation where molasses were removed under bond. Further, the question of provisional payment of duty comes only in a case when the assessee wants to pay duty provisionally and when the proper officer assesses the duty provisionally subject to finalisation later and subject to observance of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as in the present case duty was paid on the assessable value adopted at the time of payment of duty and as such the clearance of molasses was treated as final and there was no provisional assessment of duty at the time of removal of goods. The learned Consultant has also cited various case laws in support of his plea for allowing the appeal. Some of the case laws cited by him are as under : (1) 1987 (29) E.L.T. 22 in the case of Shri Dudhganga Vedganga Sahakari Karkhana Ltd. & 12 Others v. CC, Pune & Aurangabad and Another. This decision relates to molasses kept in kutcha pits under B-2 bond without payment of duty, whereas in the present case, the molasses were duty paid goods. (2) 1990 (49) E.L.T. 534 in the case of Yashwant SSK Ltd. v. CCE. This decision also relates to molasses kept in kutcha pits under B-2 bond. (3) 1991 (53) E.L.T. 562 (GOI) Govt. of India in the case of National Co-operative Sugar Mills Ltd. In this case also the molasses were kept in kutcha pits after executing bond. (4) 1998 (100) E.L.T. 513 in the case of Purna Sahakari Sakhar Karkhana Ltd. v. CCE, Auranga ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
