Auto Ignition Ltd vs Cce, Delhi-Iv

[Arising out of the OIO No.002/HQRS(Tech)/2011-12 dt.9.2.12 passed by the CCE, Faridabad)

Appeal No.E/56066/2013-EX(SM)

[Arising out of the OIA No.105/CE/APPL/DL-IV/12 dt.10.12.12 passed by the CCE(Appeals), Faridabad)

Date of Hearing/Decision: 04.03.2015

For Approval &signature:

Honble Mr.Ashok Jindal, Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes

Auto Ignition Ltd. Appellant

Vs.

CCE, Delhi-IV Respondent

Appearance

Shri J.P.Kaushik, Advocate for the appellant

Ms.Ranjana Jha, AR for the respondent

CORAM: Honble Mr.Ashok Jindal, Member (Judicial)

FINAL ORDER NO.50817-50818/2015

Per Ashok Jindal :

The appellant has filed these two appeals one against rejection of claim of remission of duty on the goods exported and second appeal against the demand of duty on the goods cleared by the appellant. It is a fact that the goods cleared for export. Before export, a fire took place on 31.3.2010 at ICD,TKD, New Delhi wherein the goods have been destroyed. Thereafter the appellant filed claim under Rule 21 of Central Excise Rules, 2002 which was rejected and consequently the demand on the goods destroyed in fire was also demanded. Aggrieved with these orders, the appellant is before me.

2. After hearing the parties, the issue arises for decision before me is whether the appellant is entitled for remission of duty when the goods cleared without payment of duty for export under bond were destroyed due to fire before the said goods could be exported.

3. The issue came up before the Larger bench of the Tribunal in the case of Honest Bio-Vet Pvt.Ltd. vs.CCE, Ahmedabad-I-2014 (310) ELT 526 (Tri.-LB) wherein the larger bench has observed as under:-

14.?We are of the view that the goods cleared for export under Bond which were destroyed before the same could be exported, can be treated as having been destroyed before removal only. This would be the fair interpretation of the Rule 21 of the Central Excise Rules, 2002. Thus, primary condition of eligibility of Remission of duty on the destroyed goods is fulfilled as required u/r 21 of Central Excise Rules, 2002. Appellant is eligible for the Remission of duty in respect of goods for export under Bond which were destroyed before the same could be exported.

15.?We find that the issue as referred to the Larger Bench, as now decided by the Honble High Court of Gujarat in Tax Appeal No. 912 of 2012 decided on 25-7-2014. Accordingly, reference to the several precedents by the ld. counsel for the assessee and by the SDR, would be of academic interest, since the judgment of the Honble High Court of Gujarat in the case of Commissioner v. Dynamic Industries Ltd. has considered the very same point which is in favour of the appellant.

16.?In view of the foregoing, we hold that in cases where goods removed from factory for export under Bond are destroyed before export, due to unavoidable accident, then in such situation the goods destroyed are to be treated as having been destroyed before removal in terms of Rule 21 of Central Excise Rules, 2002.

4. Further, I find during the course of argument, learned AR relying on the decision of Tribunal in the case of Periwal Exports vs.CCE, Jaipur in Final Order No.54241/2014 dt.29.10.2014, submits that the remission of duty is not available to the appellant.

5. On perusal of those orders, the decision of the larger bench in the case of Honest Bio-Vet Pvt.Ltd.(supra) was passed on 4.9.2014 which has not been considered by this Tribunal in the case of Periwal Exports. Therefore, the decision of the in the case of Periwal Exports is per incuriam and cannot be relied as the reference has been answered by the Larger Bench of the Tribunal in the case of Honest Bio-Vet Pvt.Ltd.(supra). Consequently the appellant is entitled for remission of duty. Therefore, the question of demand of duty does not arise. In the circumstances, the orders demanding of duty from the appellant is also set aside and the appeals are allowed.

(pronounced in the open court)

(Ashok Jindal)

Member (Judicial)

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