M/S.Dalmia Chini Mills vs Cce, Ltu, New Delhi
- CitationAppeal No.E/56352/2013-EX(SM)
Ratio decidendi
The rule this decision rests on
Where manufacturing loss or wastage of molasses arises from natural causes such as evaporation and handling, and there is no allegation that the quantity claimed as lost was clandestinely removed, the loss is condonable and duty cannot be demanded on the shortage; a loss of this kind, within the tolerance accepted in the Tribunal's precedent, is treated as natural loss rather than clandestine removal. Following the Tribunal's earlier final order in the appellant's own case for a prior period, which held that duty cannot be demanded on such shortage, the same view is applied to the present period, and the impugned demand is set aside.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of the OIA No.LTU/CE/APPL/71/2012 dt.11.12.13 passed by the CCE (Appeals), New Delhi)
Date of Hearing/Decision: 23.2.2015
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
M/s.Dalmia Chini Mills Appellant
Vs.
CCE, LTU, New Delhi Respondent
Appearance
Shri Shekhar Vyas, Advocate- for the appellant
Shri R.k.Mishra, A.R. - for the respondent
CORAM: Honble Mr.Ashok Jindal, Member (Judicial)
FINAL ORDER NO. 50567/2015
Per Ashok Jindal :
The appellant is manufacturer of sugar and molasses. During the period from December, 2008 to March, 2010, the appellant showed the wastage/loss upto 0.5% of their total production of molasses. There was also shortage of molasses. On the shortage, the duty demand has been demanded from the appellant and penalty was also proposed to be imposed. The show cause notice was adjudicated and the demand has been confirmed by the impugned order. Aggrieved with the said order, the appellant is before me.
2. Heard the parties and considered the submissions.
3. I find that the appellants own case for earlier period vide Final Order No.56640/2013 dt.04.06.2013, this Tribunal has held as under:
6. The loss is in respect of sugar season 2007-2008. There is no allegation that the quantity which is claimed as lost have been clandestinely removed. According to the appellant this loss was due to evaporation handling over a period of time and this is evident from the fact that the loss is only 0.021% of the total quantity of molasses produced during 2007-2008 sugar season. The loss being due to natural causes should have been condoned specifically in view of the fact that there is not even allegation that the quantity claimed by the appellant as loss has been illicitly removed. Therefore, I am of the view that the judgement of Allahabad High Court in the case of Kesar Enterprises Ltd. (Sugar Div.) vs. CCE, Meerut-II (supra) is not applicable to the facts of this case. Looking to the facts and circumstances of teh case, it is the judgement of the Tribunal in the case of Mawana Sugar Works vs. CCE, Meerut-I reported in 2008 (227) ELT 438(Tri.-Del.), which would be applicable wherein it was held that loss on account of natural causes upto 2% is condonable. The impugned order is not sustainable. The same is set aside. The appeal is allowed.
3. Therefore, following the precedent decision of this Tribunal in the appellants own case, I hold that the duty on the shortage cannot be demanded from the appellant. Consequently, I set aside the impugned order and allow the appeal with consequential relief, if any.
(Dictated & pronounced in the open court)
(Ashok Jindal)
Member (Judicial)
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1
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