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TMI Blog2023 (3) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... e referring to the said expression it is clarified that the language used is of wide amplitude so as to take in all losses occurring whether due to natural or human causes - In the present case there being factual adjudication of occurrence of transit/handling loss after clearance from the factory to the post of export, thereby the order passed by the revisional authority disallowing the transit loss cannot sustain in the eye of law. On perusal of the order impugned it is seen that though aforementioned judgments cited by the petitioner have been taken note of by the revisional authority in paragraph 3.11 thereof, but the said judgments have not been considered nor discussed in the judgment itself. Without taking into consideration of the same, the revisional authority has observed that no condonation of losses can be allowed - the Government notes that there is no case for imposition of penalty as adjudicating authority has not given any finding on the penal action and straightaway imposed penalty. In SN. GONDAKAR VERSUS COMMISSIONER OF COMMERCIAL TAXES IN KARNATAKA, BANGALORE AND ANOTHER [ 1983 (7) TMI 281 - KARNATAKA HIGH COURT ] it has been held that consistency in the judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter which, the quantity of charge chrome exported by the petitioner is measured on the basis of a draft survey conducted in the port. This mode of determination of weighment on the basis of draft survey gives rise to difference in quantity dispatched from factory on actual weighment and the quantity exported on the basis of ascertainment of weight by draft survey. Thus, there being difference in weight giving rise to short shipment on account of loss in transit, handling of goods within and outside the Port Area, moisture condition and several other allied factors, the petitioner submitted applications to the jurisdictional Assistant/ Deputy Commissioner for condonation of such shortages. The result of weighment by draft survey relating to the quantity exported after loading of charge chrome into the ship are reflected in AR-4. The details of shortage arising out of charge chrome dispatched from petitioner's factory and the export made relating to various shipments aggregates to 20.735 M.T. The petitioner as per the physical weighment in its factory has cleared charge chrome weighing 2000 M.T. as against which the ascertained quantity exported, as figures in ARE-Is, weighs 1979 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CEGAT in very many cases and other Courts, without considering the same, the said opposite party no.5 passed the order levying duty in respect of total shortage of 20.735 M.T., which resulted in duty demand of Rs.1,02,358/- including cess amounting to Rs.2007/-, by relying upon the letter dated 08.01.03 of the Ministry of Finance and order dated 30.06.2006 passed by the Joint Secretary to Government of India in the revision proceeding. 2.4 The Ministry of Finance in its letter dated 12.02.1987 on the subject of fixation of norms of handling and other losses relating to export of charge chrome by M/s. Ferro Alloys Corporation Ltd., which is a 100% EOU, has directed after considering the matter relating to transit/handling loss up to 1% towards charge chrome clearance from factory to the stage of export for condonation of such loss. But opposite party no.5 has not considered the same and denied the benefit admissible to the petitioner. Apart from the same, directive was issued on 12.02.1987 by the Ministry in respect of M/s. Ferro Alloys Corporation Ltd., but subsequently the Regional Advisory Committee of Central Excise and Customs, Collectorate, Bhubaneswar in its meeting hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to be feasible. 2.6. Against the order dated 08.11.2007 passed by the Commissioner of Central Excise (Appeals)-opposite party no.4, the petitioner filed a revision before the Central Government as provided under Section 35-EE of the Central Excise Act, 1944 contending therein that the order passed by the Commissioner (Appeals) does not appear to be proper and legal on the ground that in view of the letter of the CBEC in consultation with DGI (CCE) accepting the view of the said DGI (CCE) communicated vide letter dated 06.06.2001 not to condone transit/handling loss in respect of export of Calcined Alumina, no benefit under the earlier CBEC circular dated 12.02.1987 could be given to the petitioner for grant of benefit of condonation of transit/ handling loss in respect of export of charge chrome for the clearance from factory to the stage of export for condoning the transit/handling loss up to 1%. 2.7. The letter dated 08.01.2003 issued by the Ministry is in the context of chrome concentrate falling under Tariff Entry 26.10 whereas the petitioner has dispatched charge chrome for export which falls under Tariff Entry 72.20, therefore circular dated 08.01.2003 is not applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, since the law has already been decided applying the ratio thereof, the petitioner should have been extended with such benefit, but the order impugned has been passed without application of mind and without referring to the judgments cited by the petitioner. Therefore, the order so passed by the revisional authority is liable to be quashed. 4. Mr. T.K. Satapathy, learned Sr. Standing Counsel appearing for the Revenue vehemently contended to justify the order impugned passed by the revisional authority and sought for dismissal of the writ petition. 5. This Court heard Mr. Jagabandhu Sahoo, learned Senior Counsel appearing along with Mrs. Kajal Sahoo, learned counsel for the petitioner and Mr. T.K. Satpathy, learned Sr. Standing Counsel for the Revenue in hybrid mode and perused the records. With the consent of learned counsel for the parties, the writ petition is being disposed of finally at the stage of admission. 6. The sole consideration before this Court is whether the condonation of loss of 1% on the basis of CBEC circular dated 12.02.1987 would cover the case of the petitioner and if that is not applied to the case of the petitioner whether the demand so raised can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e "personal penalty" imposed by the adjudicating authority and accordingly modified the order to that extent. Consequentially, conclusion arrived at by the revisional authority is an outcome of non-application of mind. If the decisions cited on behalf of the petitioner have been noted down, but the same have not been discussed, that indicates that there is clear non-application of mind by the revisional authority. 8. In Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702, at paragraph-59, the apex Court observed that certiorari is not confined by a narrow conception of locus standi. It contains an element of action popular is because it looks beyond the personal rights of the applicant. It is designed to keep the machinery of justice in proper working order by preventing inferior tribunal and public authorities from abusing their powers. 9. In Prem Singh v. C.G., AIR 1957 SC 304, it has been observed that in a case of certiorari, error of law should be apparent. Similar view has also been taken by the apex Court in Satyanarayan L. Hegde v. M.P. Tirumali, AIR 1960 SC 137. 10. In Kalandi Charan Mallick v Union of India, 51 (1981) CLT 67, it has been observed that the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered by the appellate authorities should be respected by the subordinate revenue authorities and no attempt should be made to wriggle out of the binding decisions of higher authorities as long as they remain in force. ***" 13. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it has been emphasized that there must be consistency, certainty and uniformity in the field of judicial decisions as it sets a pattern upon which future conduct may be based. One of the basic principles of the administration of justice is that identical/similar cases should be decided alike. Apt here to have regard to the following observation of the Supreme Court in Jayaswals NECO Ltd. v. CCE, (2007) 13 SCC 807: "7. This Court in Birla Corpn. Ltd. Vrs. CCE [(2005) 6SCC 95] relying upon an earlier decision of this Court, held that the Department having accepted the principles laid down in the earlier case cannot be permitted to take a contra stand in the subsequent cases. In para 5 of the said judgment it was observed, thus: (SCC p. 97) '5. In the instant case the same question arises for consideration and the facts are almost identical. We cannot permit the Revenue to take a different stand in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present appeal which relates to AY 2012-13. No doing so will only result in uncertainty and displacement of settled expectations. This is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable." 16. Applying the above basic principles, as laid down by the apex Court as well as this Court, to the present context, this Court is of the considered view that the revisional authority though has taken note of the judgments cited before it, but has not analysed the same in its order nor discussed the same and applying the ratio of those judgments has not passed the order impugned. Had the ratio of those judgments been taken into consideration, the result would have been different than what has been done in the order impugned. In view of such position, this Court sets aside the order dated 26.04.2010 passed by the revisional authority under Annexure-10 and remits the matter back to the very same revisional authority to reconsider the same afresh by taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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