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TMI Blog2022 (9) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... d teething troubles because which of it was unable to provide the data within time. Even if it be so, the fact remains that appellant has not provided the data and is now trying to profit from its own inaction to claim that the demand is time-barred. Therefore, the appellant had actually suppressed the information from the Department and now cannot benefit by claiming that the demand is time-barred. When a demand is made, the noticee has a right to put up whatever the defence it wants to and which may be considered and accepted or rejected by the adjudicating authority. Now the only question which remains is if the extent to which the claim of remission on account of losses has been rejected by the Commissioner is correct or otherwise - in respect of certain commodities such as Sulphur, Naptha, JBO, ATF etc, the Commissioner has reckoned condonable limit of 0%. This is probably because these products were not mentioned in Circulars of 1956 and 1959. However, since the 1981 Circular of the Board clarifies that losses of up to 1% can be allowed without detailed scrutiny and loss above 1% can be condoned after scrutiny, we find no reason to not condone losses in these cases as clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature. As per the instructions of the Central Board of Excise Customs dated 1.06.1956, 2.3.1959 and 15.12.1989 losses of petroleum products in storage, pipeline deliveries and transit losses etc. are permissible up to some limits. A cumulative loss/gain statement consisting of storage losses, gains and LMI transit losses and gain for each month for all the petroleum products at 15 Degree Centigrade has to be submitted by the assesses on a monthly basis. 3. Up to September, 2003 the monthly excise ER-I returns filed by the appellant were reflecting the opening and closing balance thereafter it had not provided details of the losses. The Range Officer had written a letter dated 3.5.2005 calling for these details but the appellant failed to provide the data. Consequently, a show cause notice covering the period April 2004 to March 2006 was issued based on the information available in the quadruplicate copies of the AR3As (the re-warehousing certificates) received from the consignees. Repeated letters were written to the appellant but it had not provided the required data. 4. Thereafter, the show cause notice was taken up for adjudication. During hearing, the appellant submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed by the assessee does not appear genuine, the Department has to issue a Show Cause Notice before rejecting the claim. 7. Learned Counsel submits that in view of the above clarification, CBEC has prescribed a limit of 1% without reference to any specific products and the losses incurred by them in this case were below 1% and, therefore, duty on the same need to be remitted. He further submits that there is no allegation or evidence that any of the goods have been clandestinely removed from the factory or sold. The only ground on which the Commissioner has not remitted some losses is that she has considered the limits set in the CBEC s Circulars of 1956 and 1959 and allowed remission of duty on such products which were indicated in these Circulars and to that extent. He submits that in view of the subsequent Circular dated 19.10.1981 losses up to 1% should be condoned and the authorities need not enter into a detailed scrutiny to verify the bona fide of the reported loss. However, if the losses are above 1%, officers may scrutinize the claims closely. He further submits that Rule 21 of the Central Excise Rules, 2002 which provides for remission of duty does not lay down any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Authorised Representative for the Revenue that this is not a decision on application for remission of duty by the appellant but is a case of demand of duty on the goods which were not received in the LMIs as required under Rule 20 of the Central Excise Rules. It is also evident that the appellant had not provided the required data despite being repeatedly asked by the Range officer. Having not provided the data despite repeated requests, the appellant cannot now take shelter on the ground that the demand is time barred. The information of the extent of losses is within the exclusive knowledge of the appellant and it is its responsibility to provide the data. Having delayed in providing the data, the appellant cannot profit from its own inaction and now argue that the demand is time barred. The appellant s contention is that it was switching over to a new system which caused teething troubles because which of it was unable to provide the data within time. Even if it be so, the fact remains that appellant has not provided the data and is now trying to profit from its own inaction to claim that the demand is time-barred. Therefore, we find the appellant had actually suppressed the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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