9911796707
TMI Blog2011 (8) TMI 1253X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the Notification No. 47/2001-C.E. (N.T.), dated 26-6-2001 for the purpose of duty free warehousing under bond. 3. While so, it is the case of the petitioner that under letter dated 13-7-2004 it had intimated to the Assistant Commissioner of Central Excise, Vijayawada Division, Vijayawada, the second respondent, that due to torrential rains on 13-7-2004 in Vijayawada water got accumulated on the floating roof beyond the draining capacity, owing to which, certain quantity of SKO stored in Tank No. 002B entered the roof through emergency roof drain and got drained through the roof drain pipe and the same was found in open storm water drain outside the terminal, adjacent to their Company Owned Company Operated (COCO) outlet. It is stated that the said leakage was also informed to the Superintendent of Central Excise, Range-I, the District Collector, Krishna District and the Commissioner of Police, Vijayawada. Further, the petitioner under its letter dated 16-8-2004 stated that as per Tank gauge of the said tank, a quantity of 875.851 KL of SKO was lost due to the aforesaid leakage and therefore requested condonation/waiver of the central excise duty. However, the second resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed primarily on the ground that remission of central excise duty for the goods lost has not been granted by the proper authority (Commissioner of Central Excise, Guntur, the fourth respondent). 5. Aggrieved thereby, the petitioner preferred an appeal before the Commissioner (Appeals), Guntur, the third respondent. Upon a consideration of the entire material and arguments advanced before him on either side, the third respondent by order-in-appeal dated 24-1-2008 dismissed the appeal filed by the petitioner upholding the order of the original authority dated 29-12-2006. 6. Challenging the said order of the appellate authority, the petitioner instituted a revision application dated 23-4-2008 before the first respondent. By his order dated 11-5-2010 the first respondent rejected the revision application of the petitioner inter alia observing that the same is devoid of merit. Assailing the said order of the first respondent, the present writ petition is filed. 7. The second respondent filed a counter affidavit on behalf of all the respondents mentioning that the fourth respondent-Commissioner of Central Excise is the competent authority to grant remission of the central ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Heard the learned counsel appearing for both the parties. Perused the case file thoroughly. 10. The learned Counsel for the petitioner, while reiterating the contentions raised in the affidavit filed in support of the writ petition, submitted that Rule 21 of the Rules, 2002 provides for remission of payment of central excise duty in case the goods are lost or destroyed by natural causes or by unavoidable accident or claimed by the manufacturer as unfit for consumption or for marketing at any time before removal. In support of the said contention, he placed reliance on the decision of the High Court of Rajasthan in the case of Union of India v. Hindustan Zinc Limited [2009 (233) E.L.T. 61 (Raj.)]. He also pointed out that though the petitioner under letter dated 23-11-2004 requested the second respondent for grant of remission of duty on account of loss of SKO due to torrential rainfalls, but being advised by the department to apply the same to the fourth respondent, the petitioner had submitted a letter on 8-1-2005 to the fourth respondent for grant of remission of duty on the loss of SKO. He argued that the said application was returned merely on the ground that the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned goods cannot be dropped without any order of remission of payment of central excise duty on them. 12. Admittedly, the original authority, after duly affording an opportunity of personal hearing to both sides and perusing the entire material on record, held that unless the remission of payment of central excise duty is granted by the proper authority, the original authority cannot have any power to waive/condone the excise duty which is otherwise liable to be payable by the petitioner. It is apt to extract the relevant portion of the order of the original authority, which reads as under : The contention of M/s. Hindustan Petroleum Corporation Limited cannot be accepted unless the proper authority (Commissioner of Central Excise) has granted remission of duty under Rule 21 of Central Excise Rules, 2002 on these goods. In the facts of this case no such remission has been granted by the Commissioner so far. It is not even the claim of M/s. Hindustan Petroleum Corporation Limited that such remission has been granted. It is only contended by them that the leakage has happened due to natural causes and they have applied for remission of duty. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in this regard. Therefore, the said letter was returned to the petitioner advising it to re-submit the same to the fourth respondent with all relevant supporting and corroborating evidence and documents through proper channel as the fourth respondent is the proper authority for remission of payment of central excise duty amounting to more than ₹ 5.00 lakhs under the Rule 21 of the Rules, 2002. However, it is not understandable as to what prevented the petitioner from re-submitting the application for remission of duty on the lost goods to the fourth respondent through the proper channel when it was the case of the petitioner that the loss was occurred due to natural calamity. Instead, he agitated before the original, appellate and revisional authorities that the application submitted by it on 8-1-2005 for remission is pending consideration before the fourth respondent which was indeed returned to the petitioner vide letter dated 14-2-2005 advising it to re-submit the same to the fourth respondent through proper channel duly enclosing therewith the necessary supporting and corroborating evidence and documents. 15. In the light of the above, the submission of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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