TaxTMI 
TaxTMI 
2013 (8) TMI 198
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....at M/s. Hindustan Coca Cola Beverages Pvt. Ltd. is manufacturers of aerated water, mineral water and soda. Jurisdictional Central Excise Officers while conducting audit of the applicant's unit observed that after filling with mineral water and aerated water in bottles, there occurred some breakage in the store of finished goods. Show Cause Notices were issued to the applicant for demand of duty on the ground that the applicant supplied the figure of breakage only after pursuance of department and that they did not file any application for remission of duty. Adjudicating authority, subsequently confirmed demand of duty along with interest and also imposed penalty of an amount equal to duty on applicant vide impugned Order-in-Original. 3. ....
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....es and thus no duty can be demanded thereon. 4.3 The Commissioner (Appeals) has erred in denying remission of duty on the said breakages purely on the ground that the Applicants had allegedly failed to follow certain procedures prescribed in the Central Excise Manual read with Rule 21. It is submitted that the breakages had taken place in the manner specified in the circulars and remission had been claimed within the tolerance limits prescribed. Therefore, since all the conditions specified by the circulars have been complied with, remission cannot be denied as the repetitive issue. 4.4 The Commissioner (Appeals) has erred in confirming demand of duty on the ground that the applicants have not followed the procedure envisaged in Chapt....
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....(v) Pepsico India Holdings Pvt. Ltd. v. CCE, Kolkata-III being Final Order Nos. 866-867/KOL/08, dated 4-9-2008 [2009 (245) E.L.T. 167 (Tri.)]. 5. The case was listed for personal hearing on 27-6-2012. Sh. Sanjeev Dahiya, Corporate Manager, Indirect Taxation appeared for hearing on behalf of the applicant and reiterated the grounds of revision application. The applicant also submitted a written brief, wherein, they mainly re-iterating grounds of revision application. Shri Rohit Dwivedi, Assistant Commissioner attended hearing on behalf of respondent and stated that Order-in-Appeal being legal and proper, may be upheld. 6. Government has considered both oral and written submissions of the applicant. Government ha....
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....n off the accounts. Case should be taken to see that this limit is not cited upon as a matter of course, and each individual case is properly investigated by the range staff and cases where the loss exceeds 0.5% submitted to the Assistant Collector for adjudication on merits". C.B.E. & C. further reconsidered the issue and clarified the same vide another Circular, dated 17-9-1975. The relevant portion is reproduced below : "The tolerance may be calculated on monthly basis and the adjustments made at the end of the month". From the perusal of the above circulars, Government observes that the breakages upto 0.5% can be written off on a monthly basis in the accounts subject to the satisfaction of the range staff; and only those cases ....
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....f the same with CENVAT, any circular, instruction or provision inconsistent with the same has no relevance. As per the provisions of rule 21 of Central Excise Rules, 2002, remission of duty before removal can be claimed on any goods lost or destroyed by natural causes or unavoidable accident, claimed by manufacturer to be unfit for consumption or marketing. The said remission is granted subject to the condition of reversal of CENVAT Credit taken on inputs used in the final product, as per the Circular No. 800/33/2004-CX., dated 1-10-2004. Rule 3(5B) was also inserted in CENVAT Credit Rules, 2004, w.e.f. 7-9-2007, to specifically provide for the same. Further, as per Rule 3(5B) of CENVAT Credit Rules, 2004, if the value of any input is writt....
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....ly clarified the issue of tolerance of breakage due to handling during storage and the ratio of said circular is squarely applicable to this case. The other case laws cited by the applicant are discussed in detail by Commissioner (Appeals) and he has distinguished the said case and therefore they were not held applicable to this case. Government agrees with the finding of Commissioner (Appeals) in this regard. 11. Government observes that the applicant has contested that Circular No. 930/20/2010-CX., dated 9-7-2010 is prospective in nature and hence, cannot be given retrospective effect. Government notes that the said Circular dated 9-7-2010 is clarificatory in nature, and when any circular is issued clarifying the provision of any previ....