9911796707
TMI Blog2023 (6) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 4. It is stated that the production, storage and sale of molasses is carried out by the petitioner under the physical control and supervision of the State Authorities in accordance of U.P. Sheera Niyantran Niyamavali, 1974. It is argued that the Inspector of the State Excise Department is always posted at the factory to exercise the control and supervision as prescribed under the U.P. Sheera Niyantran Niyamawali, 1974. 5. It is stated that the molasses that emerged in the petitioners' factory are stored in steel tanks which are provided with calibration charts for calculating estimated quantity of molasses by volumetric method for the financial year 2007-08; the petitioner claimed remission of duty on the molasses lost due to storage under Rule 21 of the Central Excise Rules (hereinafter referred to as 'the Rules') by filing a remission application as is prescribed under the Rules. The department was of the view that the remission applications have been filed only to enjoy the benefit that flows from Central Board of Excise and Customs (C.B.E. & C.) Circular No. 261/15-CC/1/80-CX, dated 6-8-1982 and the petitioner was called to show cause as to why the remission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2008 15-9-2008 7-1-2009/ 31-12-2009/ 28-6-2011/ 25-11-2013 Writ-C No. 1002508/ 2013 (Balrampur Chini Mills v. U.O.I. & Others) Tank No. 2 Tank No. 6 Tank No. 2 Tank No. 6 Tank No. 2/ Tank No. 6 7-1-2009 21-4-2009/ 2-12-2009/ 2-9-2011/ 28-1-2013 412085 302390 2681.20/ 0.65 2381.90/ 0.79 2,07,123/-/1,84,002/- Writ-C No. 1002507/ 2013 (Mankapur Chini Mills v. U.O.I. & Others) Tank No. 1 Tank No. 2 Tank No. 1 Tank No. 2 Tank No. 1/Tank No. 2 29-3-2008 15-10-2008/ 29-12-2009/ 20-6-2011/ 28-1-2013 3787. 30 2448.40 - - /1.34 2,92,569/-/ 1,89,139/- Writ-C No. 1002513/ 2013 (Mankapur Chini Mills v. U.O.I. & Others) Tank No. 1 Tank No. 2 Tank No. 1 Tank No. 2 Tank No. 1/Tank No. 2 29-3-2008 15-10-2008/ 29-12-2009/ 20-6-2011/ 28-1-2013 362320 312838 5743.70/ 1.59 5249.20/ 1.68 4,73,702/-/ 4,05,501/- Writ-C No. 1002512/ 2013 (Balrampur Chini Mills v. U.O.I. & Others) Tank No. 4 Tank No. 5 Tank No. 4 Tank No. 5 Tank No. 4/ Tank No. 5 15-9-2008 9-9-2009/ 27-1-2010/ 31-3-2011/ 28-1-2013 582338.80 582338.80 3323.20/ 0.57 3250.60/ 1.48 2,56,717/-/ 2,51,109/- Writ-C No. 1001920/ 2013 (Mankapur Chini Mills v. U.O.I. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid loss. In absence of any such allegation as also any statutory provision providing that the period of "a year" will not include part of year, if loss is less than two per cent, which has caused due to natural reasons, in our view remission could not have been disallowed/allowed to assessee. In taking an otherwise view, Tribunal has assumed certain facts which is not permissible for the reason that if any allegation is made against assessee by Revenue, the same would have to be proved by Revenue which burden cannot be side tracked by taking a plea that loss has caused in a very small period i.e. in an indirect way. Rule 8(4) of Rules, 1974, for its application, does not require that "year" would mean the entire period of 12 months, and not a smaller part thereof. In absence of any law otherwise taking a different view, we are clearly of the view that plain and simple interpretation should be given to Rule 8(4) of Rules, 1974 which permits remission in case loss is less than 2 per cent within the period of a year which includes 'part of a year' also." 10. He further argues that in any case there is no allegation of removal of molasses without payment of duty, which is ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, - (a) the Central Excise Officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under clause (a), pay on the basis of, - (i) his own ascertainment of such duty; or (ii) the duty ascertained by the Central Excise Officer, the amount of duty along with interest payable thereon under section 11AA. (2) The person who has paid the duty under clause (b) of sub-section (1), shall inform the Central Excise Officer of such payment in writing, who, on receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon for the subsequent period are the same as are mentioned in the earlier notice or notices. (8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of two years referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), as the case may be. (9) Where any appellate authority or tribunal or court concludes that the notice issued under sub-section (4) is not sustainable for the reason that the charges of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty has not been established against the person to whom the notice was issued, the Central Excise Officer shall determine the duty of excise payable by such person for the period of two years deeming as if the notice were issued under clause (a) of sub-section (1). (10) The Central Excise Officer shall, after allowing the concerned person an opportunity of being heard, and after considering the representation, if any, made by such person, determine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, - (i) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid, and no periodical return as required by the provisions of this Act has been filed, the last date on which such return is required to be filed under this Act and the rules made thereunder; (ii) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid and the return has been filed, the date on which such return has been filed; (iii) in any other case, the date on which duty of excise is required to be paid under this Act or the rules made thereunder; (iv) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (v) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund; (vi) in the case where only interest is to be recovered, the date of payment of duty to which such interest relates. Explanation 2. - For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shortage of storage space at the premises of the manufacturer where the goods are made, permit a manufacturer to store his goods in any other place outside such premises, without payment of duty subject to such conditions as he may specify. xx xx xx RULE 8. Manner of payment. - (1) The duty on the goods removed from the factory or the warehouse during a month shall be paid by the 6th day of the following month, if the duty is paid electronically through internet banking and by the 5th day of the following month, in any other case : Provided that in case of goods removed during the month of March, the duty shall be paid by the 31st day of March : Provided further that where an assessee is eligible to avail of the exemption under a notification based on the value of clearances in a financial year, the duty on goods cleared during a quarter of the financial year shall be paid by the 6th day of the month following that quarter, if the duty is paid electronically through internet banking and in any other case, by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1B) Every assessee shall electronically pay duty through internet banking : Provided that the Assistant Commissioner or the Deputy Commissioner of Central Excise, for reasons to be recorded in writing, allow an assessee payment of duty by any mode other than internet banking. (2) The duty of excise shall be deemed to have been paid for the purposes of these rules on the excisable goods removed in the manner provided under sub-rule (1) and the credit of such duty allowed, as provided by or under any rule. (3) If the assessee fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with interest at the rate specified by the Central Government vide notification under Section 11AA of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. (3A) If the assessee fails to pay the duty declared as payable by him in the return within a period of one month from the due date, then the assessee is liable to pay the penalty at the rate of one per cent on such amount of the duty not paid, for each month or part thereof calculate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise, as the case may be," has been substituted. (2) The authority referred to in sub-rule (1) shall, within a period of three months from the date of receipt of an application, decide the remission of duty : Provided that the period specified in this sub-rule may, on sufficient cause being shown and reasons to be recorded in writing, be extended by an authority next higher than the authority before whom the application for remission of duty is pending, for a further period not exceeding six months. xx xx xx RULE 25. Confiscation and penalty. - (1) Subject to the provisions of section 11AC of the Act, if any producer, manufacturer, registered person of a warehouse or an importer who issues an invoice on which CENVAT credit can be taken or a registered dealer, - (a) removes any excisable goods in contravention of any of the provisions of these rules or the notifications issued under these rules; or (b) does not account for any excisable goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice, which is on record, there is no allegation that the petitioners had clandestinely removed the molasses in contravention of Rule 8 and had not paid the duty thereupon. In the absence of any allegation to the effect in the show cause notice and a consequent finding that the goods were removed without payment of duty, the duty cannot be levied under Section 11A of the Act even if the remission application is liable to be dismissed. 20. In the present case, even with regard to the grounds for rejecting the remission application, the Authorities were of the view that the loss as claimed in a very small period makes the whole issue suspicious, this view was formed treating the measurement as done by the State Excise Authorities to be the correct method for valuation completely ignoring the fact that the remission as claimed by the petitioners was over a larger period of the assessment year, thus, the same is also contrary to the law as laid down by this Court in the case of Balrampur Chini Mills Ltd. (supra), as extracted above. 21. The submission of Shri Deepak Seth, Learned Senior Counsel, that if the goods are not found in the premises, there is a presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
