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TMI Blog2023 (7) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a warehouse. A warehouse has been defined under rule 2(H) of the 2002 Rules to mean any place or premises registered under Rule 9. It is the specific case of the appellant that the premises were not registered as a warehouse. This apart, the show cause notice does not even allege that the premises which the appellant alleges is a godown is a warehouse. The Commissioner has merely drawn a presumption that the premises should be treated as a warehouse. The observations made by the Commissioner that the appellant had not submitted anything to substantiate the date and time when the goods were transferred from the factory to outside godown is also not justified as the show cause notice proceeds on the footing that the goods had been tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehouse belonging to the appellant. 4. In order to appreciate the contentions advanced by Shri Kapil Vaish, learned chartered accountant appearing for the appellant and Shri Sanjay Kumar Singh, learned authorized representative appearing for the Department, it would be appropriate to reproduce the relevant portions of the order passed by the Commissioner (Appeals) and they are as follows: 9. It is therefore clear that the goods which are cleared from a unit within the specified time period of 10 years are eligible for exemption. I further observe that the Appellants had declared vide their letter dated 02.11.2016 that there is a stock of 11.952 MT in their factory premises and 130.830 MT in their outside godown . It is therefore now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yset Corporation 2000 (I 15) ELT 451 [SCJ. I have gone through the said order of the Hon'ble court. This case provides that no Central Excise Duty can be charged on the goods which were not excisable at the time of manufacture irrespective of time of clearance. The said judgment is not applicable to the facts and circumstance of this case. It is clear that the goods which are excisable but exempt under Section SA of the Central Excise Act, 1944 shall be leviable to duty in case the exemption is withdrawn. 11. I also find in this regard that the definition of 'place of removal was amended in 1996 and the warehouse or the outside godowns where the goods are stored prior to sale were included in the place of removal. Circular of 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the godown situated outside the factory lying unsold, they should be treated as lying in the warehouse of the appellant. 6. The contention of the learned chartered accountant appearing for the appellant is that neither the show cause notice mentions that the goods were lying in the warehouse nor the adjudicating authority had observed that the goods were lying in the warehouse. In fact, learned chartered accountant submitted that only a presumption has been drawn by the Commissioner (Appeals) that the goods should be treated as lying in the warehouse of the appellant. Learned chartered accountant also submitted that the finding recorded by the Commissioner (Appeals) that the appellant had not submitted anything to show when the stock ..... X X X X Extracts X X X X X X X X Extracts X X X X
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