2001 (9) TMI 543

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....fore the Commissioner (Appeals) against the order passed by the Assistant Collector, Belgaum Division, in which the refund claim for Rs. 2,19,323/- preferred by the appellant being the duty paid on molasses stored in kutcha pits on the ground that the same was deteriorated due to mixing of rain water and it was declared as unfit for human consumption as well as animal feed by the Chief Chemist, Central Chemical Laboratory, Department of Excise. It had been rejected by the Asstt. Collector as time-barred and also the molasses was stored in kutcha pits on appellant's risk and no refund duty would be entertained at a later stage in case of deterioration of molasses. Aggrieved by the said order the party has filed an appeal before Commissioner ....

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.... taken permission from the department to destroy the molasses and ask for remission of the duty. He is questioning the constitutional validity of issuing such a trade notice and illegal levy of collection of tax at the time of storage of molasses. He relied upon the decision of the Tribunal in the case of Shri Dudhganga-Vedganga Sahakari Sakhar Karkhana Ltd. & Twelve Other Sakhar Karkhanas and others v. Collector of Central Excise, Pune reported in 1987 (29) E.L.T. 22 (T) in support of his contention. He said that payment of duty was not required in respect of excisable goods made in a factory until they are about to be issued out of the place or premises specified under Rule 9 or are about to be removed from a store room or other place of ....

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....that the point at issue has been properly analysed by the authorities below as can be seen from Para 7 of the order passed by the Asst. Commissioner and Para 3 of the Commissioner (Appeals) respectively. The relevant paras are as under : "7. The short point for consideration is party's eligibility for refund of Rs. 2,19,323/-. The duties have been paid on 13-4-1989 to 1-6-1991 whereas the refund claim has been preferred on 21-10-1992 in the office of the Asstt. Collector of Central Excise, Belgaum Division, Belgaum and, therefore, the refund claim is filed beyond the statutory period of six months under Section 11B. Therefore, I hold that the refund is time-barred. The party has tried to argue that refund is eligible in view of the ....

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.... the refund claim was not preferred in time due to the Excise Chief Chemist's report, it is not the fault of the Department of C. Ex. and in any case. Law cannot wait for the assessee's convenience. Once an assessee has opted to store the molasses at their risk, they will have to face the risk involved in the process. The Hon'ble Tribunal's decision cited by the appellant has discussed the scope of Rule 49 and the issue there was remission of duty on molasses and not refund of duty and the case law is, therefore, stands distinguished". She also submitted that the Trade notice is in conformity with the Rules 9, 47 and 49 of the Central Excise Rules and question of challenging the validity of issue of such notice do not arise. 4. I....