AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (3) TMI 451
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....in the fire accident and did not include the Customs and Excise duty component. The appellant preferred an application to the department for remission of duty on the capital goods destroyed in the fire accident. A Show Cause Notice dated 09.12.2008 was issued to the appellants demanding duty of Rs. 22, 12,129/- [Rs. 21 ,52,512/- towards duty on imported goods and Rs. 59,614/- as duty on goods procured indigenously] along with interest and also proposing to impose penalty. The allegation in the Show Cause Notice was that the capital goods were not put to use for the intended purpose and also that the appellants did not fulfill the export obligation as required by the condition laid in the notification. That appellants have not taken proper care to safeguard the goods procured without payment of duty under the EOU Scheme. After due process of law, the original authority dropped the proceedings. The department filed appeal before the Commissioner (Appeals) and in the first appellate proceedings the demand was confirmed. The appellants preferred an appeal to the Tribunal against such order, and vide Final Order No. 737/2011 dated 20.10.2011, the Tribunal remanded the matter to the Comm....
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....ed by confirming the decision passed by the Tribunal and therefore the decision in the case of M/s. Sami Labs Ltd., has attained finality. 3. Another issue that was raised by the Commissioner (Appeals) was with regard to the powers of the original authority who had adjudicated the matter. In para 18 of the Order-in-Original the original authority observed that the Additional Commissioner has been empowered to adjudicate the cases in which revenue involved is more than Rs. 20,00,000/- and up to Rs. 50,00,000/- In the present case, the amount of Rs. 59,614/- involved comes under Central Excise Act and the remaining part of the disputed duty would come under Section 23 of Customs Act, 1962. That therefore, the adjudication made by the Additional Commissioner is within his powers and jurisdiction. The pecuniary jurisdiction of Deputy Commissioner under Section 23 is not restricted as per the provision. Further, that the Commissioner (Appeals) relied upon the judgment of Honorable High Court of Calcutta in the case of M/s. Antarctica Limited Vs. Union of India [2010 (258) ELT 206 (Cal.)] to hold that unless duty is paid on goods, the remission cannot granted, and held that as a....
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....tion of granting of remission of duty. 5. I have heard the submissions made before me. 6. It is not disputed that the capital goods imported as well as indigenously procured were destroyed by an accident of fire. In the impugned order, the Commissioner (Appeals) has denied the request for remission mainly on two grounds. Firstly, for the reason that the appellants has not used the goods for the intended purpose and secondly as they had not fulfilled the export obligation stipulated in the notification. Further, the Commissioner (Appeals) has relied upon the judgment in the case of Antarctica Limited (supra) to observe that as the appellants have not paid the duty they cannot request for remission of duty under Section 23 of Customs Act, 1962 and that this section would apply only when duty is paid. For better appreciation, the relevant provision of Section 23 of the Customs Act, 1962 is noticed as under: Section 23 in the Customs Act, 1962 23. Remission of duty on lost, destroyed or abandoned goods.- (I) Without prejudice to the provisions of section 13, where it is shown to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of ....
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.... by the notification has been rendered impossible by circumstances over which, the assessee had no control, like the case of an unavoidable fire accident, the circumstances will be taken as a valid excuse. This is exactly the intention of the law contained in Section 23 as well as Rule 21 which deals with remission of duty. 9. The Commissioner (Appeals) has relied on the judgment laid in Antarctica Ltd. In my view, the judgment has been wrongly applied by Commissioner (Appeals). The judgment was delivered invoking the writ jurisdiction of the Honorable Court. As rightly pointed out by the Ld. Counsel for appellant, the facts in the case of Antarctica Limited (supra) are entirely different from the case in hand and therefore distinguishable. In Antarctica Ltd., the petitioner therein was continuously filing writ petitions without complying with the interim orders to make pre-deposit of duty. Further, in that case, before the occurrence of fire accident the petitioner therein had wrongly mortgaged the property violating the conditions of import. The insurance claim was paid to financial institutions to repay the mortgage. Thus there was breach of condition by petitioner himself an....
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....en request for remission of the same. The Section would then be of no purpose. The Law makers in their innate wisdom has used the word remission and not refund, adjustment or rebate. 12. The discussion of the Hon'ble High court of Karnataka in Symphony Services Corporation India Pvt. Ltd., (supra) is note worthy in this regard and reproduced as under: In so far as Section 23 is concerned, it deals with remission of duty. The condition precedent for application of this Section is the imported goods should have been lost other than as a result of pilferage or destroyed at any time before clearance for home consumption. Then the duty payable on such goods which is lost or destroyed shall be remitted by the authorities concerned. Sub-section (2) of Section 23 deals with a case where the goods is neither lost nor destroyed but the said goods is of no use to the importer. Then he has the option of relinquishing his title to the goods and thereupon he shall not be liable to pay duty thereon. The proviso to the said Section adds a rider, i.e., such a relinquishment will not be permitted if the goods regarding which an offence appears to have been committed under the Act or any ot....