TaxTMI 
TaxTMI 
2022 (9) TMI 1211
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....o June 2009 and July 2009 to November 2009 OIO No. & Date Raigad/ADC/110-111/10- 11 dated29.03.2011 (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 ....
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....akages, they are not entitle to benefit of exemption on the tolerance limit in view of the CBEC Circular No. 93 0/20/2010 CX dated 9.7.2010. • Circular dated 9.7.2010 does not provide that this will have 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. Therefo....
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.... 7. The appellants are engaged in the manufacture of various brands of "aerated waters" falling under chapter 22 of Central Excise Tariff Act, 1985. The goods are filled in glass bottles/ PET bottles and metal cans. Since the bottles/cans are filled under high pressure, the same are prone to breakage during storing, handling and loading in the store room. Considering the nature of the manufacturing activities and nature of production process, 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 Centra....
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....riod in the instant case is Financial Years 2005-06, 2007-08, 2008-09 and July 2009 to March, 2010. The RT 12 returns and ER 1 returns submitted by the appellants do not relate to the period discussed in the appeal. Hence, the evidence produced by the appellant are of no avail." 4.3 The only issue for our consideration in these appeals is: "Whether the duty is demandable on the bottles of beverages which have broken?" 4.4 The issue of jurisdiction that has been raised by the learned authorized representative 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 ev....
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....s occurs in storage, it is a loss referred to in Section 35B proviso. The artificial distinction between one type of loss and another sought to be made in Shiva Essential Oils & Chemicals's case does not appear to be correct in view of the unambiguous language of Section 35B. We are of the opinion that the Tribunal has no jurisdiction to hear appeals arising out of the orders of Commissioner (Appeals) where the appeals relate to loss of goods either in transit or in storage as stated in proviso (a) to Section 35B of the Central Excise Act." However, 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 adjudic....