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TMI Blog2012 (9) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... ble limit – demand and penalty confirmed - F. No. 195/1082/2009-RA - 878/2011-CX - Dated:- 7-7-2011 - Shri D.P. Singh, J. REPRESENTED BY : Shri L.P. Asthana, Advocate, for the Assessee. Shri D.P.S. Kochhar, Supdt., for the Department. [Order]. This revision application is filed by M/s. Indian Oil Corporation Ltd. against the Order-in-Appeal No. 167/CE/DLH/09, dated 1-9-2009 passed by Commissioner of Central Excise (Appeals), Delhi-II with respect to Order-in Original No. 18/2007 passed by the Joint Commissioner of Central Excise, Delhi-II. 2. Brief facts of the cases are that M/s. IOC Ltd., Bijwasan, New Delhi registered with Central Excise Department for warehousing of Petroleum products falling under Chapter 27 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to consider the various grounds raised in the appeal. It was pointed out that the losses taken cumulatively were well within the prescribed limit and, therefore, the demand of duty is not justified. 4.2 In view of the Board Circular dated 15-12-1989, the storage losses are to be taken up for condonation on a cumulative basis month wise. It is submitted that the use of the word cumulative in the Board Circular dated 15-12-1989, suggest that the loss for all the tanks taken together is to be considered on a month wise basis. Therefore, the applicants submit that the losses are within the prescribed maximum of 0.5% in the various circulars. 4.3 It is well known that petroleum products are highly volatile and very susceptible to var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal against the subject order was preferred by the Department but the same was dismissed, by Hon ble CESTAT, New Delhi vide Final Order No. 31-12-2004. 4.6 That variations has been treated as losses, in the instant case. This is incorrect, as this is in fact temperature variation only (TVA) during receipt of product through tank trucks and the same is not attributable to storage losses in the warehouse. 4.7 The duty is liable to be paid only on clearance of the goods and accordingly no demand is sustainable in the present case on losses, which were not removed at all. 4.8 In their own case the Hon ble Tribunal has held that in the absence of definite evidence of clandestine removal no demand of duty can be raised. In this regard, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the same by setting aside the mandatory penalty while upholding the order for confirmation of demand. Applicant has now filed this application on the grounds stated in para 4 above. 8. Government notes that adjudicating authority has already condoned losses upto 0.5% and demand is confirmed on the tosses exceeding 0.5%. The applicant has contended the cumulative losses for the month may be calculated for all the storage tanks. In this regard adjudicating authority has rightly relied upon the C.B.E. C. letter F. No. 9/26/65-CX-III, dated 11-4-1966 wherein it was clarified that no set off of a gain or loss in a tank is permitted against the loss or gain in another tank. So, this argument does not hold good. Further, C.B.E. C. has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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