9911796707
TMI Blog2025 (3) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... ous Rules providing for warehousing provisions had held 'in view of the Notification No. 46/2001 not being disturbed by the CBEC read with Circular No. 261 dated 30.10.1985, the petitioner would be entitled to transit loss upto 1% for non payment of duty on the products transferred from the refinery/factory to the place of storage for the purpose of export only.'
Conclusion - The applicability of Circular dated 30.10.1985 to export warehousing affirmed, allowing for condonation of transit loss up to 1%.
There is no infirmity in the order passed by the Commissioner of Central Excise, Chandigarh - Appeal of Revenue dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 30.10.1985 which is applicable only in case where eventual clearance is for home consumption. He further submits that the said circular does not deal with export warehousing and has no legal validity. He further submits that Export warehousing will be governed by Circular No. 581/18/2001-CX dated 29.06.2001 and Circular No. 579/16/2001-CX dated 29.06.2001 which provides that if the goods are not received by the consignee, consignor is liable to pay excise duty for the goods not reached to the destination. He further submits that the said circulars do not provide for condonation of transit loss. 4.2 Ld. DR further submits that Chapter 10 of the excise manual does not mention about any transit loss in respect of export warehousing provision. 5. On the other hand, Ld. counsel appearing for the respondent fully justified the impugned order and submits that while filing the present appeal the Revenue has travelled beyond the show cause notice because during the adjudicating proceedings, the only basis of the Department for not allowing condonation of transit loss upto 1% was that the Circular dated 30.10.1985 was withdrawn in 2004 and thus was not operative as on date; whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the respondent is entitled to claim remission of duty under Rule 21 of the Rules; in case the goods have been lost at any time before the removal. She further submits that in the present case the place of removal is the warehouse from where goods are sold after clearance of refinery and transit loss of Naphta during transportation from refinery to warehouse is permitted as per Rule 21. For this submissions, she relied upon the following cases: * Honest Bio-Vet Pvt. Ltd. Versus Commissioner Of C. Ex., Ahmedabad-1 2014 (310) E.L.T. 526 (Tri. - LB) * M/S Glenmark Pharmaceuticals Ltd. Versus Commissioner Of Central Excise & Customs, Nashik 2018 (6) TMI 472-CESTAT Mumbai * JK Industries Limited Versus Commissioner Of Central Excise, Customs And Service Tax, Mysore 2017 (8) TMI 350-CESTAT Bangalore 5.5 She further submits that the imposition of penalty imposed under Rule 25 of the Central Excise rules read with Section 11AC is not sustainable as the same is imposed in case the elements of fraud/suppression/ wilful misstatement of facts etc. are satisfied; whereas, in the present case, the department failed to specify any positive act on part of the respondent which proves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority, it is clear that the revisional authority has ignored the existence of the Circular No. 46/2001 dated 26.06.2001 which is still in operation for the purpose of facility of removal of petroleum products without payment of duty for export warehousing, meaning thereby that as per Circular No. 46/2001, till the goods reached to the warehouse for the export purpose, the same would be treated as removal of petroleum products at the factory gate and the petitioner would be governed by the Circular No. 261 dated 30.10.1985 by which the petitioner is entitled to exemption from duty upto 1% of transit loss. Reliance placed by the revisional authority on the clarification of the Circular No. 804/2005 is misplaced in the facts of the case as it pertains only to the storage loss in export warehouse/tanks whereas the petitioner has claimed the exemption from payment of excise duty on the transit loss till the products of the petitioner are stored in warehouse/tanks whether intermediate or at AFS including those with such mix-storage as per the Notification No. 261 dated 30.10.1985 which is taken into cognizance by the revisional authority in the order dated 14.02.1991 passed in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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