TaxTMI 
TaxTMI 
2013 (11) TMI 1522
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....cant was engaged in the manufacture of Gutkha. On 30-5-2006 a search operation was conducted by the departmental officers in the factory premises of the applicant. During the course of search, the department found 15,800 kgs of loose Gutkha valuing Rs. 31,60,000/- lying in the factory premises. The departmental officer seized the said loose Gutkha under the Panchnama and handed it over to Shri K.M. Shukla, the Director of the applicant company vide Supurdnama dated 30-5-2006. A Show Cause Notice dated 28-11-2006 was issued proposing confiscation of the seized goods demand of duty and imposition of penalty. The Additional Commissioner, Central Excise, Ghaziabad, vide order-in-original No. 02/ADC/GZB/2009, dated 13-2-2009 held, in regar....
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....-Ill, Ghaziabad stated that the permission for destruction of goods could be given only after the competent officer had passed the order for remission. The applicant filed application dated 23-4-10 for remission of duty and permission for destroying the said goods to the jurisdictional Commissioner of Central Excise. In response to their said application for remission of duty, the Additional Commissioner of Central Excise vide letter dated 1-2-2011, conveyed the direction of the Commissioner of Central Excise that your remission request was already rejected by Deputy Commissioner of Central Excise. 3. Being aggrieved by the said letter dated 1-2-2011, the applicant filed appeal before Commissioner (Appeals) who rejected the same by ho....
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....s not apply due to the subsequent event that the said gutkha had become unfit for human consumption and, therefore, not capable of being sold in the market and, as per the direction dated 24-5-2009 of the Food Inspector, Nagar Nigam, Ghaziabad to destroy the said gutkha immediately. 4.3 The Commissioner (Appeals) ought to have appreciated that as the loose gutkha in question was not capable of being cleared in market, there is no question of its removal and when there is no issue relating to removal being unfit for human consumption, there is no point in taking the same in RG-1 register as finished product. 4.4 It is most respectfully submitted, the applicant had never applied for remission of duty and, therefore, the dire....
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....reference of such communication was made to the Commissioner also. Therefore, the applicant cannot file any appeal before the Hon'ble Tribunal under the provisions of Section 35B of the Central Excise Act, 1944 and therefore, the Commissioner (Appeals) ought to have entertained the appeal of the applicant on merits. Even otherwise, if the Commissioner (Appeals) was of the considered view that appeal lies before the Hon'ble CESTAT, he would have granted liberty to the applicant to file appropriate proceedings before the Hon'ble CESTAT. 6. Government has carefully gone through the relevant case records, oral & written submissions and perused impugned order-in-original and order-in-appeal. 7. Government observes that the applicant ....
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.... in the Table below that goods have been lost or destroyed by natural causes or by unavoidable accident or are claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal, he may remit the duty payable on such goods as to the extent specified in the corresponding entry in the said Table, subject to such conditions as may be imposed by him by order in writing. The competence to supervise destruction of excisable goods claimed by the manufacturer as unfit for consumption or for marketing, at any time before removal has also been specified in column 4 of the said Table. Destruction shall be carried on only after the competent officer has passed the order for remission. TABLE Sl. No. Competent Cent....
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....r, your request for destruction of goods has already been rejected by the Divisional Dy. Commissioner. 3. This issues with approval of the Commissioner of Central Excise, Ghaziabad." 8.4 Government notes that the said letter dated 1-2-11 simply communicates the rejection of request by Deputy Commissioner. It does not say that Commissioner of Central Excise has rejected their request dated 23-4-10. So it implies that applicant's request dated 23-4-10 for remission of duty & destruction of goods is still pending and not finally disposed off by Commissioner. As regards letter dated 6-10-09 of Deputy Commissioner of Central Excise, the said letter conveys only refusal for destruction of goods for non-compliance of order-in-ori....