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TMI Blog2022 (9) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the appellant for the period prior to issuance of the said circulars is contrary to the fact that during the period of dispute there were two circulars of 1971 and 1975 which have been followed by the appellant. It is not even stated in the impugned order that these two circulars were not applicable to the appellant. It is also noted that the MODVAT credit scheme was introduced in the year 1986 and CENVAT credit scheme is refined form of the said scheme. These circulars continued to hold field throughout till 09.07.2010. Observations made by the Commissioner (Appeal) in para 8 of the impugned order cannot be sustained for this simple reason. It is noted that substantial compliance with the circular of 2010 has been made by the appellant by reversing the CENVAT Credit on the inputs used in respect of the finished goods contained in the breakages. Thus, taking the note of the reversal made, the impugned order cannot be sustained. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods manufactured at the appellant's plant at Roha and duty paid brought from other locations and were meant for trading only. Demand in respect of breakages pertaining to duty paid goods of other units is not maintainable. * Demand in respect of breakages on finished goods pertaining to the appellants Rona plant is not maintainable appellants have already reversed cenvat credit involved in such breakages. * D.1 In view of the inherent difficulties face by the aerated water industry, CBEC vide Circular dated 8.9.1971 specifically provided that in respect of breakage of bottles of aerated water, the breakage upto 0.50% is allowed and the same can be written off in the accounts. The clarification provided under the aforesaid Circular dated 8.9.1971 was re-confirmed by the CBEC vide another Circular dated 17.9.1975. This is permitted after careful consideration of the practical aspect that loss to such an extent is routine and normal during handling and movement therefore, ordinarily, the production of aerated water would stand reduced by tolerance limit prescribed. * The above circulars were in force during the period under consideration. Since the breakages in the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Holdings Pvt. Ltd. * Final Order No. FO/78666/2017 dated 22.12.2017 passed by the Hon'ble CESTAT, Kolkata in the case of Pepsico India Holdings Pvt. Ltd. * Hindustan Coca Cola Beverages (P) Ltd. Vs. CCE - 2009 (243) ELT 270 (T) * Hindustan Coca Cola Beverages Pvt. Ltd. Vs. CCE - 2010 (253) ELT 642 (T) * Hindustan Coca Cola Vs. CCE - 2007 (220) ELT 908 (T) * Kandhari Beverages (P) Ltd. - 2008 (224) ELT 265 (T) * Bharat Coca-Cola Bottling N.E. P. Ltd. Vs. CCE - 2007 (216) ELT 548 (T) * Suggestion by Ld. AR that the present appeal is not maintainable before the Hon'ble CESTAT in view of Section 35B(a) of the Central Excise Act, 1944, is incorrect and erroneous. 3.3 Arguing for the revenue learned authorized representatives while reiterating the findings recorded in the impugned orders submitted that tribunal does not have jurisdiction to consider these appeals. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 In the impugned orders Commissioner (Appeals) has observed as follows for rejecting the appeal filed by the appellant:- "6. The issue for decision is whether the duty is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty. They had mentioned the quantity of broken bottles in their monthly returns from time to time. The officers have also visited and examined the issue and the loss is less than the limit prescribed by the Board. The orders are set aside and the appeal is allowed. 9.3 Hence the said case laws are not relevant to the instant case. 10. In view of the introduction of CENVAT scheme and new Central Excise Rules, 2002, the appellant ought to have filed application of remission of duty which they have failed to do so. The Tribunal in their own case reported in 2009/245) ELT-167- Kol has allowed the benefits to the appellants on the ground that they have filed applications for remission. In other manufacturing plants/units were aware of the procedure for remission of duty on broken goods. Ignorance of law procedure by their Roha unit cannot be taken as a valid excuse to escape duty liability: 11. As regards the invocation of extended period, the appellant have pleaded that the breakages have been periodically reported by them in their monthly RT-12/ER-1 returns. They have also submitted copies of RT-12 returns for the month of June 1995 and ER1 return for the month of April 2009. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of it. 6. When a similar matter came up before the High Court of Judicature at Madras in a writ petition India Pistons Ltd. v. ACCE - 1987 (27) E.L.T. 651 (Mad.), the Hon'ble High Court did not find fault with the Tribunal's decision that it lacked jurisdiction to deal with appeals arising out of an order passed by Commissioner (Appeals) pertaining to loss of goods. We are aware that the Hon'ble High Court has not given any ruling on whether or not such a view of the Tribunal is correct or not. But did not find fault with it either. In the case of Lakshmiji Sugar Mills Co. Ltd. v. CCE [1991 (56) E.L.T. 629], the Tribunal held that it had no jurisdiction to hear appeals of this nature. The Tribunal relied upon the decision of the Madras High Court cited supra. The position would be however different if the appeal arises out of an order passed by Commissioner of Central Excise (Appeals). Against such order, appeal does lie with the Appellate Tribunal. 7. We observe that the Tribunal in the case of Shiva Essential Oils & Chemicals v. CCE, Noida cited supra, has not considered the decision in Lakshmiji Sugar Mills Co. Ltd.'s case nor was it cited before them. Loss, whether it occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ico India Holdings Pvt. Ltd. Order dated 21.12.2016, passed by the Hon'ble CESTAT, Kolkata. 4. Pepsico India Holding Pvt. Ltd. Va. Commissioner of Central Excise, 2013 (289) ELT 162 (Tri.). 5. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise 2010 (261) ELT 567 (Tri.). 6. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise, 2009 (245) ELT 167 (Tri.). 7. Commissioner Vs, Pepsico India Holding Pvt. Ltd. 2013 (287) ELT A129 CAL. 8. Pepsico India Holding Pvt. Ltd. Vs. Commissioner of Central Excise, 2006 (201) ELT 69 (Tri.). 9. Hindustan Coca-Cola Beverages Pvt. Ltd. Vs. Commissioner of Central Excise, 2009 (243) ELT 270 (Tri.). 8. In view of the above discussion, the impugned Order is set aside and the appeal filed by the appellant is allowed." 4.6 The reliance placed by the Commissioner (Appeal) on the Circular dated 09.07.2010 to decide the issue against the appellant for the period prior to issuance of the said circulars is contrary to the fact that during the period of dispute there were two circulars of 1971 and 1975 which have been followed by the appellant. It is not even stated in the impugned order that these two circulars we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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