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TMI Blog2016 (7) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... bed the percentage for the particular item only. Admittedly, the goods manufactured and cleared by the assessee is not NGL and as such they are not eligible for the benefit of the above circular, as rightly held by the Commissioner (Appeals). - Demand confirmed - Decided against the assessee. - F. No. 195/457/2012-RA(CX) - ORDER NO. 57/2016-CX - Dated:- 29-4-2016 - SMT. RIMJHIM PRASAD, JOINT SECRETARY ORDER: This Revision Application is filed by M/S Nirma Ltd., Ahmedabad (hereinafter referred to as the Applicant) against the Order-in-Appeal No. Commr.(A)/274/VDR1/10 dated 20.10.2010 passed by Commissioner of Central Excise (Appeals), Mumbai with respect to the Order-in-Original No.D/07/DN.I/08-09 dated 17.03.2008 passed by the Assistant Commissioner of Central Excise Customs, Division-I, Vadodara-l. 2.The facts of the case, in brief, are that the applicants are engaged in the manufacture of Linear Alkyl Benzene (LAB) falling under Chapter 38 of the Central Excise Tariff Act, 1985. The Applicants had cleared LAB to various locations under UT-I for export under the provision of Rule 19 of Central Excise Rules, 2002, in the months of November, 2007 and May, 2008. On s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export. In such type of cases, it is but natural that some short quantity may occur during handling the export goods at various stages. Therefore, it could be very well said that short quantity is only due to natural causes and so no duty is required to be paid on short quantity, but required to be remitted under Rule 21 of Central Excise Rules. 4.3 That the Commissioner (Appeals) rejected the claim of the Applicant mainly relying upon Board's Circular No.292/8/97-CX dated 24.01.1997 and held that the Circular is applicable only to the product NGL falling under tariff heading No.27101190 and not applicable to other products viz. LAB falling under tariff heading No.38170011 and no other goods. 4.4 That it is submitted that the instructions issued by the Board is only a guideline to the officers for uniformity in taking the action by the Departmental officers. But in any case, it is not the law. The applicant relied and brought the Board Circular to the notice of the Commissioner (Appeals) only as an example that the similar views can be taken in other products cases. The applicant had not relied only Board's Circular but relied upon several decisions in which it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61 (Raj.) - Hindustan Zinc Ltd. (3) 1996 (86) ELT 6 (All.) U.P. State Cement Corporation Ltd. Upheld by Supreme Court as reported in 1999 (112) ELT A44 (S.C.) (4) 2008 (221) ELT 246 (Tri.Delhi) - Upper Doab sugar Mills. (5) 2008 (225) ELT 271 (Tri.Delhi) - Oswal Overseas Ltd. (6) 2008 (225) ELT 389 (Tri.Delhi) - Venus sugar Ltd. 4.7 That it is submitted that the goods are exported in two manners. Accordingly, the goods exported in sealed containers which are directly loaded in ships no possibility of handling and storage. Whereas in a case when exports goods are transported in some tankers from factory and thereafter unloaded from tankers and stored in large tank in custom area and from storage tank to vessel meant for shipment a negligible short quantity is noticed which is only due to natural causes during transportation and handling the goods at different stages. The present case is of this kind / type this very fact was argued during personal hearing before the Commissioner (Appeals), who had indifferently distinguished the transportation in sealed containers where no shortage noticed. Unfortunately this has not been considered. Therefore, this ground is also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before CESTAT. Therefore, Hon'ble CESTAT has not entertained our appeal and dismissed the same on the ground that appeals filed before the wrong forum is not maintainable vide Order No. A/651-652/WZB/ AHD/2012 dated 08.05.2012. Copy of which is enclosed herewith. Under the circumstances, we now file this Revision Application before your honor for consideration. Under the circumstances, we request your good self to be kind enough to condone the delay for late filing of Revision Application and admit the same in the interest of justice. 6.Personal Hearing in this case was scheduled on 06.07.2015 and 18.12.2015. 6.1Hearing held on 06.07.2015 was attended by Shri Motilal A. Patel, Consultant and Shri Vikram, AGM, Indirect Taxation, Nirma Ltd. on behalf of applicant, who reiterated grounds of Revision Application. A written submission dated 07.07.2015 was also received from the applicant as under: 6.1.1 As regards to condonation of delay in filing the revision application, it is submitted that as explained in our condonation of delay in filing the revision application under letter dated 12.05.12, we have explained the reasons for the delay. In addition to that it is furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a judgment of Punjab Haryana High Court in Sonia Overseas Pvt. Ltd reported in 2015 (316) EL.T. 578 (P H), therefore the matter restored to Joint Secretary (Revision) for deciding application for condonation of delay. Same views in the case of Sonia Overseas Pvt. Ltd reported in 2015 (316) ELT 578 (P H). The ratio of the aforesaid decision is squarely applicable in the present case and therefore your Honour is requested to condone the delay and requested to take the decision on merits. 6.1.3 As regards to merits of the case we have explained in detail in the grounds of our revision application. In addition to that we further submit that the facts in brief are that there is minor short quantity in export goods which is due to natural causes. It is an admitted and undisputed fact that this is not the case of the Department nor any allegation that the short quantity is due to the result of disposal of goods illicitly or the goods have been clandestinely cleared without payment of duty but the case of the Department is that the short quantity has been exported. Both the lower authorities has not considered the instructions issued by the Board under circular dated 24.01.97 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Department. The Department vide their letter dated 16.12.2015 mainly reiterated contents of impugned orders and also placed reliance upon various case laws in support of the contention that this is not a case for remission of duty under Rule 21 of the Central Excise Rules 2002. 7.Government has carefully gone through the relevant case records available in case files, oral and written submissions and perused the impugned Order-in-Original and Order-in-Appeal. 8.Government first takes up the application for condonation of delay in filing Revision Application. The applicant has submitted that they were pursuing the appeal before wrong forum (Hon ble CESTAT) filed this Revision Application. The appeal before Tribunal was rejected on the grounds of jurisdiction vide its order date 08.05.2012. Thereafter the present Revision Application was filed on 25.05.2012. 8.1 The time calculation for filing Revision Application is as under: A Date of communication of impugned Order-in-Appeal : 29.10.2010 B Date of filing appeal before Tribunal : 06.12.2010 C. Total time taken in filing appeal before Tribunal A - B :2+30+5=37 Order-in-Appeal days. D.Date of communication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not allowed by the original authority on the grounds that the losses should have occurred prior to removal of goods from the factory. The original authorities further held that the applicant failed to prove that goods exported by them viz. LAB is the same as Natural Gasoline Liquid (NGL) to qualify for storage transit, handling losses upto 0.5% in terms of Board's Circular No.292/8/97 dated 24.01.1997. The Commissioner(Appeals) has also held that as applicants failed to give evidence to prove that NGL and LAB belong to the same group there was no cause to interfere with the impugned Order-in-Original. 11.Government observes that the main contention of the applicant is that the short shipment of the impugned goods has occurred due to storage and handling loss in the course of transit from the factory to the port. As the loss has occurred due to natural causes they are entitled to remission under Rule 21 of the Central Excise Rules, 2002. 11.1Rule 21 reads as under: Rule 21. Remission of duty . - Where it is shown to the satisfaction of the Commissioner that goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ratio of the Tribunal's decisions are to the effect that duty is liable to be paid by the assessee in respect of goods cleared for export and destroyed before export. Respectfully following the above ratio, I find that the appeals to be devoid of merit Therefore, the appeals are dismissed 11.2.2 The Tribunal in the case of Ginni Filaments Ltd. vs. CCE, Lucknow 2005 (188) E.L.T. 45 (Tri. - Del) held that: 4. I have considered the submissions made by both the sides. I find that the Commissioner has rejected the application for remission of duty on a correct ground that the remission under Rule 49 is allow able when the loss takes place within the factory. Rule 49 does not provide for remission of duty after clearance from the factory. Therefore, I do not find any merit in the appeal and the same is rejected. 11.2.3 In the case of M/S Periwal Exports vs. CC, Jaipur-Il 2015 (317) 793 (Tri.- Del), it was held as under: 7. From plain reading of this Rule, it is clear that remission of duty in respect of the goods lost or destroyed due to natural causes or by unavoidable accident is permissible only when this loss or destruction has taken place 'Vat any time be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods occurs due to natural or unavoidable accident, at any time before removal of goods from factory of manufacture. In the instant case, the goods were removed from factory and loss had occurred after removal of goods. As such, remission of duty sought in this case is not covered in the provision of said Rule 21 ibid. 11.2.5 The Hon'ble High Court of Andhra Pradesh in the case of Virat Crane Agri Tech Ltd. vs. CCE, Guntur 2011 (271) E.L.T.510 (A.P.) ruled that Rule 21 of Central Excise Rules, 2002 has to be interpreted strictly. The said judgment was approved by the Apex Court 2013 (292) E.L.T. A99 (S.C.). Therefore, the rule cannot be interpreted as loosely. The substantial condition that the loss has to be before the clearance of the goods from the factory has to be fulfilled to qualify as a case of remission and the applicant has ignored this position. 12.Government further observes that Commissioner (Appeals) has held the applicant to be ineligible for the benefit of Circular No. 292/8/97-CX dated 24.01.1997 holding the said Circular to be applicable to NGL only. On perusal of the above Circular, it is crystal clear that the benefit is only admissible to the Natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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