Total Oil India Pvt. Ltd vs Commissioner Of Central Excise, ...

(Arising out of Order-in-Appeal No. PKS/168/BEL/2010 dated 13.7.2010 passed by Commissioner of Central Excise (Appeals), Mumbai-III)

For approval and signature:

Honble Mr. Ramesh Nair, Member (Judicial) ======================================================

1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Total Oil India Pvt. Ltd. Appellant Vs. Commissioner of Central Excise, Belapur Respondent

Appearance: Shri Archit Agarwal, C.A., for appellant Shri N.N. Prabhudesai, Superintendent (AR), for respondent

CORAM: Honble Mr. Ramesh Nair, Member (Judicial)

Date of Hearing: 17.4.2015 Date of Decision: 17.4.2015

ORDER NO

In the present appeal, the issue involved is of loss of goods in floods. Shri N.N. Prabhudesai, learned Superintendent (AR), appearing on behalf of the Revenue, raised the preliminary issue that since the issue involved is loss of goods lying in the factory, the appeal does not lie before this Tribunal in terms of proviso clause (a) of Section 35B(1). Shri Archit Agarwal, learned Chartered Accountant appearing on behalf of the appellant, concedes that the application the said order lies before the Revisionary Authority. However, he requests that liberty be granted for filing revision application before the appropriate forum.

2. I have considered the submissions of both the sides. The relevant Section 35B is reproduced below:-

Section 35B. Appeals to the Appellate Tribunal.  (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order 

(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise , either before or after the appointed day, under section 35A, as it stood immediately before that day :

Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, 

(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty ;

(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules madethereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998:

Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where 

(i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; o

(ii) the amount of fine or penalty determined by such order,

3. On going through the above Section, it is clear that when the case involved is of loss of goods, the appeal does not lie before this Tribunal. However, the assessee is required to make revision application before the Revisionary Authority, Government of India, in terms of Section 35EE of the Central Excise Act. Therefore, the appeal is dismissed as non-maintainable. However, the appellant is granted liberty to file revision application before the Revisionary Authority in terms of Section 35EE of the Central Excise Act. (Pronounced in Court)

(Ramesh Nair) Member (Judicial)

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