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TMI Blog1984 (8) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes Additional Collector and the signatures by the Additional Collector are sufficient enough to comply with the provisions of sub-section (2) of Section 35-B of the Central Excises and Salt Act, 1944. He has further pleaded that the Additional Collector has signed the same after taking necessary permission from the Collector. His signatures on the left side of the memorandum of appeal viz. Form EA 3 is a bona fide mistake and the same may be condoned. 3. Shri C.S. Sinha, the learned Advocate on behalf of the respondent has pleaded that this Court may take its view as it thinks fit. 4. Under sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944, the Collector of Central Excise has to direct a Central Excise Officer authorised by him to file an appeal. The relevant sub-section (2) of Section 35B of the Central Excises and Salt Act is reproduced as under :- (2) The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day or the Collector (Appeals) under section 35A, is not legal or proper, direct a Central Excise Officer autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Rules, 1944 inasmuch as they removed 10,945.68 qtls. of molasses without payment of duty in an unauthorised manner. The jurisdictional Inspector of Central Excise had raised a demand vide DD2 No. 72881 dated 24th May, 1982 for ₹ 34478.89 under Rule 9(2) of the Central Excise Rules, 1944 coupled with a show cause notice vide C. No. Molasses/28/82/174 dated 24th May, 1982 desiring the assessee to show cause to the Assistant Collector, Central Excise, Laheriasarai why a penalty should not be imposed upon them under Rules 9(2) and 173Q of Central Excise Rules, 1944. The respondent in reply to the said show cause notice submitted that the molasses in question were stored in open kutcha pits. There was shortage of space and some molasses of 78-79 also had to be mixed with the old stock in the open kutcha pit. There was prohibition in Bihar that the distilleries did not lift the molasses in spite of the order of the Molasses Commissioner. This resulted in deterioration of the molasses stored in the open kutcha pit. The respondent had approached the Molasses Controller of Bihar and after undergoing all chemical tests and after being satisfied that the molasses was really deteri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. He has pleaded that under Rule 47, it is obligatory for the assessee to seek permission from the authorities for the destruction of goods. Rule 47 deals as to how the goods may be stored without payment of duty and in the self-removal procedure, such storage should be in a licensed warehouse under Rule 140. The destruction of the goods has to be in accordance with the provisions of Rule 49 of the Central Excise Rules, 1944. 7. In reply Shri C.S. Sinha, the learned Advocate has pleaded that the revenue is trying to make a fresh case. He has referred to the judgment of J.K. Synthetics Ltd. v. Union of India and Others reported in 1981 ECR 333D (Delhi) wherein it was held that whatever may be the position of a court of law or of an Appellate Tribunal it is not open to the Income-tax Authorities to change their view capriciously. He has pleaded that there is no obligation upon the assessee under the provisions of Rule 47 in respect of destruction of goods which is unfit for human consumption. He has also pleaded that there is no contravention of Rule 49 of the Central Excise Rules. He has further pleaded that transfer into kutcha pits is also no contravention at all. He has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure for destruction in the presence of the Excise Superintendent, Darbhanga. When all procedures were about to be gone through, the destruction of deteriorated molasses, the Excise Dept. during his visit on 26-4-1982 had got the deteriorated molasses destructed in his presence in accordance with the procedure laid down by the Molasses Commissioner. From the above, it will appear that the destruction of the deteriorated molasses was done by the rightful authority i.e. the Excise Supdt. under the orders from the Molasses Controller. The correspondence for this destruction was going on since last several years as it will appear from the enclosures of our letter No. 1263 dated 18-4-1982 and if there was anything wrong in it, you.................. cessors might have raised objection. It is..................objection is dated 26-4-1982, the date on which the Excise Supdt., Darbhanga has got the molasses destructed. In the above circumstances, it is requested that our above said explanation may be accepted and the demand for taxes on the deteriorated molasses already destructed by the Excise Supdt., Darbhanga on the orders of Molasses Commissioner, Bihar may kindly be withdrawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of destruction from the Molasses Commissioner. The argument of the learned Counsel for the respondent that the department has made a new case at the appellate stage is not tenable. The judgment cited by the learned Advocate doss not help him. The revenue has not raised any fresh plea. The revenue has taken the plea on the facts and the papers already on record. The Hon ble Andhra Pradesh High Court in the case of C.I.T. v. Gangappa Cables Ltd. reported in 116 ITR 778/1979, Taxation Law Report 37 (not cited by the parties) had held that where there is sufficient evidence on record, new plea can be taken before the Tribunal. I would also like to observe that this Court had passed an order in Appeal No. ED (CAL)/480/83 in the case of Collector of Central Excise, Patna v. M/s. Bihar State Sugar Corpn. Ltd. vide order dated 3rd January, 1984. The present respondent was the respondent in the said appeal. This judgment has not been brought to my notice by any of the party. In the said order the facts were similar but the difference was that the destruction of the goods was done in the presence of the Central Excise Authorities and the Central Excise Authorities had duly issued a certifica ..... 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