2017 (1) TMI 375

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....age, which were cleared without payment of excise duty amounting to Rs. 3,78,143/- on the ground that the aforesaid quantities of bottles were broken/leaked, burst out at the time of storage because of high pressure of Carbon Di-Oxide gas rendering the said bottles unfit for human consumption. 2. It is the case of the Revenue that the Appellants were not able to justify the quantity of damaged bottles either by way of physical verification by the Central Excise officers or by producing suitable documents in this regard. The Revenue in their Grounds of Appeal inter alia has stated that "3. The decision has been completely made on the basis of the decision of Hon'ble CESTAT vide Order No. A-866-867/Kol/08 dated 04.09.08, which its....

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....ment for verification was ever made by the assessee and on the contrary they have claimed repeatedly that the breakage loss cannot be physically produced for inspection. Thus the condition of the circular is not fulfilled in the present case and what effectively transpires is that the assessee is claiming the duty remission as a matter of right without any supporting evidence/ verification etc. (iii) Board's clarificatory circular no. 261/ID/1/75-8 Dated 17.9.75 also reiterating the above points. (iv) Hon'ble CESTAT passed the order giving benefit of doubt to the appellants ignoring the abovementioned guidelines of the Board. (v) In the instant case, breakage etc, occurred after the goods were manufactured and....

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....el appearing on behalf of the Respondent submitted that the Appeal filed by the Revenue has been dismissed by the Hon'ble High Court in their own case as reported in - 2013 (287) ELT A-129(Cal.). 4. Heard both sides and perused the appeal records. 5. Para 6 & 7 of the impugned order are reproduced below for ready reference:- "6. In view of the above, it appears that the issue has not attained finality, but as the matter has already been decided by the Hon'ble CESTAT, Kolkata and the matter is presently before the Hon'ble High Court, I am of the considered opinion that the issue is not open for me to decide. However, since the last operative order from the Hon'ble CESTAT is in favour of the appellants, it would be only fair to....