2008 (5) TMI 38

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....kraborty, Advocate Assisted by Shri A. Biswas, Advocate, for the Respondent. [Order per : Justice S.N. Jha, President]. - These Appeals by the Revenue came up before us on a Reference made by the Division Bench. In course of hearing a question arose as to the maintainability of the Appeals in view of Clause (a) of the first proviso to Section 35B of the Central Excise Act, 1944. Section 35B provi....

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....of Central Excise, Thane-Il in 2005 (183) E.L.T. 255 (Tri.-LB), a Larger Bench of the Tribunal has held that loss of goods in whatever way or form, is a loss and so long as such loss occurs in storage, it is a loss referred to in Section 35B proviso. The relevant portion of the Larger Bench's decision may be extracted as under :- "7. We observe that the Tribunal in the case of Shiva Essential Oil....

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.... respectful agreement with the above view of the Larger Bench. It would follow that the present Appeals arising out of the Order of the Commissioner (Appeals) relating to loss of goods in a storage in a factory are not maintainable before this Tribunal. 3. Indeed, the remedy in respect of matters like the present one is contained in Section 35EE of the Central Excise Act, 1944 under which any par....