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TMI Blog2017 (8) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Department, cannot be said to be in compliance of Chapter 18 of the C.B.E. & C.’s Central Excise Manual. If the appellant is claiming remission of duty on destruction of the drugs under Rule 21 of the Central Excise Rules, 2002, the appellant is required to follow the procedure as required as per Chapter 18 of the C.B.E. & C.’s Central Excise Manual. It is required to be noted that on facts it cannot be said that there was inordinate delay on the part of the appropriate authority in not responding to the application submitted by the appellant. What is provided under Chapter 18 of the C.B.E. & C.’s Central Excise Manual cannot be said to be procedural condition of technical nature. It is substantive condition, and therefore, non-observance of the same is not condonable and is likely to facilitate the commission of fraud and administrative inconvenience It cannot be said that the learned Tribunal has committed any error, which calls for the interference of this Court - appeal dismissed - decided against appellant. - Tax Appeal No. 610 of 2016 with T.A. No. 611 of 2016 - - - Dated:- 7-12-2016 - M.R. Shah and B.N. Karia, JJ. Shri Hardik P. Modh, Advocate, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the appellant that some of the finished goods manufactured by the appellant during the period from 1996 to 2003 were not sold in the market and crossed their expiry dates, and therefore, the same became unfit for human consumption. It is the case on behalf of the appellant that since such medicines were unfit for human consumption as per Food and Drugs Control Act (hereinafter referred to as FDA ) and Food and Drugs Control Rules (hereinafter referred to as FDR ), the appellant-assessee was required to destroy the same. It is the case on behalf of the appellant that therefore vide letter dated 31-10-2005 the appellant submitted an application to the respondent for granting permission for removing the finished goods from bonded store for destruction under Rule 21 of the Central Excise Rules, 2002. Thereafter, again vide communication dated 17-11-2005 the appellant requested the respondent to grant permission for removing of goods from bonded store room for destruction. Pursuant to the letters addressed by the appellant, the Superintendent of Central Excise, Vapi vide letter dated 19-12-2005 requested the appellant to furnish the inventory detail of RG-1 Register of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that after the appellant submitted an application/applications for obtaining permission to destroy the finished goods and seeking remission of duty, no such permission was granted by the Revenue within 21 days, and therefore, the appellant destroyed the goods/drugs in the presence of the Officer of the Food and Drugs Administration Department on 11-1-2006. The Additional Commissioner of Central Excise, Daman vide Order-in-Original dated 31-3-2008 confirmed the demand on the appellant under Section 11A(2) of the Act and ordered to recover the same along with interest under Section 11AB of the Act and imposed penalty under Section 25(1) read with Section 11AC of the Act and under Section 15 of the Cenvat Credit Rules, 2004. The Additional Commissioner also confirmed the demand of Cenvat Credit under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11A of the Act. 3.3 Feeling aggrieved and dissatisfied with the Order-in-Original dated 31-3-2008, the appellant preferred appeal. The first appellate authority-Commissioner (Appeals) dismissed the appeal for non-compliance of the stay order. Feeling aggrieved and dissatisfied with the order-in-appeal dated 30-10-2008, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the P.P. Medicaments were unfit for human consumption, and therefore, when such goods were destroyed in presence of Officer of Food and Drugs Administration Department, the appellant is entitled to remission of duty on such destroyed goods/drugs. It is submitted that if there is any procedural lapse, the same are required to be condoned. 4.3 It is further submitted by Shri Hardik Modh, learned advocate appearing on behalf of the appellant that in the facts and circumstances of the case, the learned Tribunal has erred in holding that destruction in absence of supervision/permission of the Central Excise Officer is not in accordance with the provisions. It is submitted that the learned Tribunal ought to have given due weightage to the certificate dated 17-1-2006 issued by the Food and Drugs Administration Department in which it was certified that the goods/drugs were destroyed on 11-1-2006 in presence of their Officer. It is further submitted by Shri Hardik Modh, learned advocate appearing on behalf of the appellant that in the present case the appellant did submit an application/applications to appropriate authority to grant permission for destruction and remission of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. It is submitted that according to the appellant if the goods were destroyed on 11-1-2006, there was no question of again asking permission on 13-1-2006. It is submitted that in any case even necessary particulars, such as RG-1 Register, etc., were produced on 13-1-2006. It is submitted that the procedure as provided under Chapter 18 of the C.B.E. C. s Central Excise Manual is required to be followed with a view to ensure and satisfy the appropriate authority that the goods/drugs are not fit for consumption and they are liable to be destroyed and also to ensure that the same goods i.e. the goods, which are liable to be destroyed are in fact destroyed. It is submitted that therefore the same cannot be said to be mere formality and/or procedural requirement. It is submitted that therefore the learned Tribunal has rightly confirmed the order passed by the authority/Commissioner (Appeals) confirming the demand of duty, interest and penalty. It is submitted that the impugned order passed by the learned Tribunal is not required to be interfered with in the facts and circumstances of the case narrated hereinabove. Making the above submissions, it is requested to dismiss the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for consumption or for marketing such as report of chemical test or any other test, conducted by a Government recognized laboratory. (ii) The application will be quickly processed by the Range Officer. In case the Range Officer is competent to allow destruction and remission (in terms of para 1.2 above), he will proceed to take necessary action at his level. In case the matter falls within the competency of superior officer, he will forward the application along with his recommendation to the Deputy/Assistant Commissioner of the Division within 15 days of receipt. (iii) The Deputy/Assistant Commissioner will scrutinize the application and based upon the information given by the assessee, if found in order, allow destruction of goods and remission of duty, if the case relates to his competency. Otherwise, he will forward the application with his remarks to the superior authority competent to give permission for destruction and remission (Additional/Joint Commissioner or Commissioner, as the case may be) within 3 days. (iv) Where only physical verification is required, the same may be conducted by the remission granting authority (proper officer), as specified abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a manner that they become irretrievable as excisable commodity. The actual method of destruction will depend upon the nature of the goods to be destroyed. For example, matches, cotton, rayon and woolen fabrics, paper, cigar and cheroots may be destroyed by fire. Electric bulb and batteries may be destroyed by crushing into bits and scraps. Vegetable oils and vegetable products may be destroyed by mixing earth or kerosene and dumping into pits. Whatever method of destruction is adopted, the officer supervising the destruction will satisfy himself that the destroyed goods cannot be marketed. If there is any doubt with regard to the suitability of any particular method for destruction of any goods, the officer destroying the goods will refer the matter to his superior officer for orders. 2.2 The officer supervising the destruction must endorse under his signature the relevant records/documents such as ARE-1, invoices and other relevant factory records indicating the description and quantity of the goods destroyed in his presence specifying the time and date. 2.3 Immediately after destruction of the goods is completed, the officer supervising destruction must also send a cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application was submitted by the appellant on 31-10-2005 and thereafter on 17-11-2005 and the same was responded by the appropriate authority vide letter dated 19-12-2005 and the appellant was requested to furnish inventory detail of RG-1 Register of the goods mentioned in the application dated 31-10-2005. It is an admitted position that the appellant did not furnish the required information/inventory details of RG-1 Register of the goods till 13-1-2006 and for the first time submitted the same on 13-1-2006 after the goods were destroyed. 6.2 It is also required to be noted that though it was the case on behalf of the appellant that the appellant destroyed the goods on 11-1-2006, vide letter/communication dated 13-1-2006, the appellant again requested to grant permission to remove the goods from bonded store room for the purpose of destruction and requested for remission of duty. Once the goods were destroyed on 11-1-2006, according to the appellant, it is not appreciable to again ask for permission to destroy the goods vide letter dated 13-1-2006. Be that as it may, the fact remains that the appellant had destroyed the goods without prior permission of the appropriate authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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