2000 (9) TMI 755

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....ga, Sitamarhi District, Bihar, are entitled to a refund of Rs. 13,60,000/- being the excess Central Excise duty paid by the Sugar Factory of the same Company at the time of removal of Molasses to the storage tank located in the premises of the Distillery Division. 3. The facts relevant to the appeal are that the Sugar Factory and the Distillery Division of respondent Company hold two separate Central Excise Registration certificates. During the crushing season 1994-95, on account of shortage of storage in their premises, the Sugar Factory requested their jurisdictional Assistant Collector of Central Excise to permit them to store excess Molasses in the newly constructed Steel Storage Tank of the Distillery Unit (Alcohol Unit). As pe....

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....ing to him, were merely transferred to the storage tank of the Distillery Unit. As such, the ld. Commissioner held that assessable value shall be determined with reference to the provisions of section 4(1)(a)(ii) of the Central Excise Act, 1944 read with Section 4(2) ibid. The Revenue is aggrieved by the said impugned order. Hence this appeal. 4. The impugned order has been assailed on the following grounds : (a)     knowing fully well that specific permission is required to be obtained from the Collector for permission to store the Molasses without payment of duty under Rule 47(5) ibid, the respondents failed to apply and obtain such a permission; (b)     as the respondents did not foll....

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....he Sugar Factory to Distillery Unit was merely a transfer such a transaction cannot be termed as "sale" and, therefore, the excess duty paid on the assessable value of Rs. 140/- per quintal is liable to be refunded to the respondents. 7. We have heard the rival contentions from both sides and also carefully perused the order of the lower authorities. It is an undisputed fact that, despite being advised by the Assistant Collector, the respondents did not apply and obtain specific permission of the Collector under Rule 47(5) ibid for removal of the Molasses without payment of duty. The respondents had chosen to remove the Molasses on payment of appropriate duty. Quite obviously, the assessable value, as contended by the Revenue, shall....