9911796707
TMI Blog2011 (6) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ot justified on no intimation was filed by the appellant which was found to be factually wrong as this allegation has been contested by the assessee by producing evidence in the form of letters duly acknowledged by the jurisdictional Central Excise officer - in favour of assessee. - E/1690 of 2009-SM(BR) - 393/2011-SM(BR)(PB) - Dated:- 14-6-2011 - Mr. M. Veeraiyan, J. Appearance: Shri Vikrant Kakria, Advocate for the Appellants Shri K.P. Singh, DR for the Respondent Per M. Veeraiyan: This is an appeal against the order of the Commissioner No. MP[3/2009-TECH] 3/2009 dated 20.3.09. 2. Heard both sides. 3. The relevant facts, in brief, are that the appellants, a manufacturer of VP sugar and molasses, vide their ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the jurisdictional Central Excise officers. He also submits that in terms of Board's circular No. F.No. 261/15/CC/ 1/80-CX-8 dated 6.2.1982, losses upto 2% will be condoned irrespective of whether molasses were stored in kuccha pits / steel tanks or pacca tanks. Therefore, the denial of remission and consequent demand of duty was not justified. He further submits that there is no evidence of any removal of alleged short found goods and therefore the question of imposing any penalty under Section 11AC or Rule 25 does not arise. 5.1 Learned SDR strongly supports the order of the Commissioner. He has taken me through the relevant portions of the order of the Commissioner. In particular, drawing my attention to the statement of the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission has also been noted by the Commissioner in para 5 titled 'defence reply'. However, the Commissioner has not dealt with this crucial defence submission. The Commissioner has denied remission holding that 2% storage loss of molasses could not be claimed as a matter of routine or right without justifying the natural causes. The appellants have not claimed remission at a flat rate of 2% of the quantity stored in the steel tanks. Varying percentage of shortages has been duly intimated during the period May, 2005 to November, 2005. Subsequently in November, 2005, remission was sought for and the reason for shortage has been given as due to natural causes like evaporation losses. The Board have applied their mind to this issue and issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 2% loss prescribed by the Board. The Commissioner is right while saying that the appellants cannot claim the remission upto 2% as a matter of right. At the same time, it was not proper to disregard the facts and circumstances of the case and deny the remission. It is not the case of the department that there can be no evaporation loss at all especially during the months of summer. For example, there was losses in May, 2005 which related to production of earlier months. Similarly, the losses noticed in November, 2005 related to period prior to November, 2005. Substantial period for which the there was storage loss is undisputedly for summer months unlike in the case of Kesar Enterprises Ltd. (supra) relied upon by the department. 8. F ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
