TaxTMI 
TaxTMI 
TaxTMI 
2022 (9) TMI 1211
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....9.03.2011 (i) JSC/Adj./01/Ch- 1/2011-12 dated 28.7.2011 (ii) US/330/M-II/2012- 13 dated 28.7.2011 OIA No. & Date BC/30/RGD/ 2012-13 dated30.4.2012 US/330/M-11/2012 dated11.5.2012 Amount Involved Rs.32,32,540/- (29,26,011/- plus 3,06,529/-) Rs.4,07,557/- (Rs.3,79,644/- plus Rs.27,913/-) Penalty Rs. 29,86,011/- Rs.4,07,557/= 2.1. The appellants were engaged in the manufacture of "Aerated Waters" at Roha plant. The aerated water manufactured by them is bottled in glass bottles. In their store the goods manufactured by them as well as other units (received on payment of duty) are stored. During course of handling and storage some of the glass bottles break which are removed to scrap yard. Appellant reversed amount of Rs 5,47,217/- in September 2010 towards the CENVAT credit availed on such breakages. 2.2 The revenue issued show cause notices as indicated in table in para 1 proposing to recover excise duty in respect of these breakages treating them as finished goods beverages, along with interest and penalty. 2.3 The above notices were adjudicated vide Order-in-Original referred in para 1 above. The impugned orders upheld the Order-in Original. 2.4 Aggrieved ap....
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.... retrospective operation and will be applicable to the breakages for prior period to its issuance. It is also settled legal position that a circular which is beneficial in nature applies retrospectively but a circular which is oppressive has to be applied prospectively. Kindly refer: * Suchitra Components Ltd. Vs CCE - 2007 (208) ELT 321 (SC) * Bezel Pharma Pvt. Ltd. Vs CCE - 2008 (221) ELT 512 (T - LB) Affirmed by Hon'ble Supreme Court in CCE Vs. Bezel Pharma Pvt. Ltd. - 2010 (255) ELT A14 (SC) * Bajaj Auto Ltd. Vs Collector of CE - 1996 88 ELT 355 (T) * Alkem Laboratories Ltd. Vs. CCE - 2006 (203) ELT 102 (T) * Since the breakages were within the permissible limits, the same were allowed to be written off and no remission application was to be filed for the same by the appellants. It automatically follows that there is no statutory requirement of filing remission application as per Circulars. Therefore, the benefit of the circulars can be extended to the petitioners without following the procedure for remission under Rule 21 of CER, 2002. * Issue is no longer res-integra and has been decided in the favour of appellant in their own cases * Pepsico India Holdings ....
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...., the CBEC has issued instructions regarding condonation of such breakages, which are discussed as under: i. CBEC circular No. ID/3/70/cx-08 dated 8.9.71 ii. CBEC circular No. 261/ID/1/75-CX-8 dated 17.9.75 iii. CBEC circular No. 930/20/2010-cx dated 9.7.2010 8. From the above circular, it is evident that vide circulars dated 8.9.71 & 17.9.75 the breakage to the extent of 0.5% of total production was allowed to be written off in the accounts. However vide circular dated 9.7.2010, the Board has clarified that the earlier instructions were issued in the context of breakage of glass bottles, when the CENVAT/MODVAT scheme was not available. After the introduction of CENVAT scheme, remission under Rule 21 of Central Excise Rules, 2002 can be claimed on the goods lost/ damaged before the clearance, subject to reversal of credit on inputs. It is therefore evident that the instructions issued on 8.9.71 & 17.9.75 are not on the subject issue as period involved therein is from 2005-06 onwards. 9. The appellant have referred and relied upon the Tribunal decision in their own case on the issue. 9.1 It is seen that in the order No. A-866-867/KOL/2008 dated 4.9.2008, the Tribunal has....
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....ve has been raised by the authorized representative at the very late stage. The appellants have appeals were filed in the year 2012. The Appeals came up for hearing before the CESTAT at the time of stay hearing in 2012. The Revenue did not raise the issue of jurisdiction at the time of stay hearing. The CESTAT exercised the jurisdiction and granted stay in this matter. This ground being preliminary ground should have been raised at the earliest available opportunity. Having not raised this ground for almost ten years, authorized representative now will be hit by delay and latches and should be rejected on this count itself. However we find that this ground is not even sustainable on merits. The relevant provision of Section 35 B of the Central Excise Act, 1944 is reproduced below: "Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in Clause (b) if such order relates to, - (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the ....
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....owever, we find that the present case is not in respect of the loss of goods during storage or transportation but is case of the demand of the duty in respect of the breakages of glass bottles during storage and handling. Further the issue is with regards to applicability of the Circulars of 1971 and 1975 to determine whether the breakages was within the prescribed limit. Since the issue in our view is not covered by the above provision of the section 35 B of the Central Excise Act, 1944 the objection raised by the authorized representative cannot be sustained. We are supported in our view by the fact that the same issue has been adjudicated by tribunal in the appellants own case and in case of similarly placed appeals on number of occasions in past in the decisions referred to by the appellant. 4.5 We find that that the issue is no longer res-integra. In the appellant own case in a long list of decisions referred by the counsel the issue has been decided in the favour of appellant. For sake of brevity we reproduce here the relevant para from the order No FO/78666/2017 dated 08.11.2017 of the Kolkata Bench:- "7. The Learned Commissioner (Appeals) observed that the appellant shou....