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TMI Blog2017 (8) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... were not annexed to the place of production or manufacture, i.e., factory premises, as is evident from the record and, upon perusal of the impugned Show Cause Notice. The earthen pits, i.e., katcha pits were located within the factory premises. The Assesseee could not have been called upon to pay duty, merely, on account of the fact that the molasses had been stored in earthen pits, i.e., katcha pits, which are otherwise located within the factory premises - appeal allowed - decided in favor of assessee. - C.M.A. No. 120 of 2016 - - - Dated:- 28-6-2017 - Rajiv Shakdher And R. Suresh Kumar, JJ. For the Appellant : Mr.Shankaraman For the Respondent : Mr.A.P.Srinivas JUDGMENT ( Judgement of the Court was delivered by Rajiv Shakdher, J. ) 1. This is an appeal filed by the Assessee against the judgement and order dated 04.08.2014, passed by the Customs, Excise and Service Tax Appellate Tribunal (in short, the Tribunal ). 2. The Tribunal, by virtue of the impugned judgement, dismissed the appeal preferred by the Assessee, based on the judgement of the Division Bench of the Patna High Court in the matter of : Harinagar Sugar Mills Ltd. V. Union of India, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee responded to the Show Cause Notice vide reply dated 28.09.1999. The Adjudicating Authority, after taking into account the stand taken by the Assessee, in its reply, proceeded to drop the demand raised in the aforementioned Show Cause Notice. 5.6. One of the reasons for dropping the demand was that a similar proceeding had been initiated against the Assessee vide another Show Cause Notice dated 12.08.1998. The proceedings initiated vis-a-vis the said Show Cause Notice were dropped by the Adjudicating Authority vide order dated 23.02.1999. The reason for dropping the proceedings was that, a finding of fact was returned that the earthen pits, i.e., katcha pits, were within the factory premises. 5.7. Therefore, based on the judgement of the Tribunal in the matter of : Commissioner of Central Excise, Patna V. Bihar State Sugar Corporation, 1998 (26) RLT 586 (CEGAT), no further steps were taken to precipitate the Show Cause Notice 12.08.1998. 5.8. The Show Cause Notice dated 06.09.1999, which is relevant for the present proceedings, was adjudicated upon. The Order-in-Original was passed on 07.03.2001, whereby, the proceedings initiated via the Show Cause Notice dated 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is also the submission of the learned counsel that, since, proceedings initiated via an earlier Show Cause Notice, i.e., Show Cause Notice dated 12.08.1998, were dropped, the Revenue, ought not to have agitated the matter again, by issuing the impugned Show Cause Notice, dated 06.09.1999. For this purpose, learned counsel relied upon the following judgement of the Supreme Court : CCE, Navi Mumbai V. Amar Bitumen and Allied Products Pvt. Ltd., 2006 (202) ELT 213 (SC). 8. Mr.A.P.Srinivas, who appears on behalf of the Revenue, argues to the contrary. In support of his submissions, learned counsel, largely, relies upon the judgement of the Tribunal. Furthermore, learned counsel also seeks to place reliance on the judgement of the Patna High Court in Harinagar Sugar Mills Limited V. Union of India, 2001 (138) ELT 3 (Pat.). 8.1. Emphasis is also laid by Mr.A.P.Srinivas, on the fact that the SLP preferred against the said judgement was dismissed. 8.2. Furthermore, the submission of Mr.A.P.Srinivas, is that, since, molasses was stored in earthen pits, i.e., katcha pits, without approval of the concerned authorities, it amounted to removal within the meaning of Rule 9, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 9 or are about to be removed from a store-room or other place of storage approved by the Commissioner under Rule 47. 11. Given the aforesaid circumstances, the moot issue, which is required to be decided by us, is : whether the storage of molasses in earthen pits, i.e., katcha pits, amounted to removal within the meaning of rule 9 read with rule 49. 11.1. The record shows that the allegation against the Assessee is that the storage of molasses was made by the Assessee in earthen pits, i.e., katcha pits, located within the premises. Quite clearly, the molasses were not removed outside the precincts of the factory. 11.2. Mr.A.P.Srinivas's argument that the earthen pits, i.e. Katcha pits, were not a storage place, which were approved by the Commissioner, and therefore, there was a removal within the meaning of Rule 9 read with Rule 49, is an argument, which cannot be accepted, as that submission, if, at all, would apply to the second limb of sub-rule (1) of Rule 9, which reads as follows : or any premises appurtenant thereto, which may be specified by the Commissioner in this behalf, ..... 11.3. Clearly, the premises appurtenant to the place of production, cu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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