TaxTMI 
TaxTMI 
2023 (3) TMI 1069
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....for export under Bond without payment of duty vide ARE-1 No.1 dated 15.04.2006 to No.06 dated 21.04.2006 and dispatched the same in bulk and loose condition to Visakhapatnam Port. Before dispatch of charge chrome from the factory of the petitioner, the same are physically weighed in the weigh bridge and thereafter goods are loaded in truck which is transported to Visakhapatnam Port by road. The consignment after arrival at the port is dumped in the area allotted in the Port and thereafter goods moved from the wharf to the jetty by truck. The goods are loaded in the ship by crane after which, the quantity of charge chrome exported by the petitioner is measured on the basis of a draft survey conducted in the port. This mode of determination of weighment on the basis of draft survey gives rise to difference in quantity dispatched from factory on actual weighment and the quantity exported on the basis of ascertainment of weight by draft survey. Thus, there being difference in weight giving rise to short shipment on account of loss in transit, handling of goods within and outside the Port Area, moisture condition and several other allied factors, the petitioner submitted applications to....
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.... found to be less than 1% as per the circular of the Board of Central Excise, the same was allowed in several occasions by the opposite parties in the case of present petitioner. 2.3 But the opposite party no.5, while taking a sharp departure from the earlier stand resorted to imposition of duty denying grant of condonation of short shipment of goods which also occurred on account of handling/transit losses. Even though the petitioner has highlighted its legitimate claim for condonation of transit/handling loss and has referred to relevant circular/instructions and order passed by the CEGAT in very many cases and other Courts, without considering the same, the said opposite party no.5 passed the order levying duty in respect of total shortage of 20.735 M.T., which resulted in duty demand of Rs.1,02,358/- including cess amounting to Rs.2007/-, by relying upon the letter dated 08.01.03 of the Ministry of Finance and order dated 30.06.2006 passed by the Joint Secretary to Government of India in the revision proceeding. 2.4 The Ministry of Finance in its letter dated 12.02.1987 on the subject of fixation of norms of handling and other losses relating to export of charge chrome by M/s....
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....007 denying the benefit admissible to the petitioner. 2.5. Against the order dated 20.03.2007 passed by opposite party no.5, the petitioner preferred appeal before the Commissioner of Central Excise (Appeals), as provided under Section 35-A of the Central Excise Act, 1944, who rejected the appeal on 08.11.2007 by holding that in view of the letter dated 08.01.2003 there is no provision for condonation of handling and natural loss after removal of goods from the factory and the proposal for specifying a limit for condonation of such losses after removal from the factory was not found to be feasible. 2.6. Against the order dated 08.11.2007 passed by the Commissioner of Central Excise (Appeals)-opposite party no.4, the petitioner filed a revision before the Central Government as provided under Section 35-EE of the Central Excise Act, 1944 contending therein that the order passed by the Commissioner (Appeals) does not appear to be proper and legal on the ground that in view of the letter of the CBEC in consultation with DGI (CCE) accepting the view of the said DGI (CCE) communicated vide letter dated 06.06.2001 not to condone transit/handling loss in respect of export of Calcined Alu....
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....e been extended in favour of the petitioner, but the said judgment though referred to, but has not been considered. Therefore, it is contended that similar claim of condonation of loss in case of Indian Metals & Ferro Alloys Ltd., which is a sister concern of the present petitioner, was also allowed by the CEGAT, Kolkata in the case of CCE&C Bhubaneswar-I v. Indian Metals & Ferro Alloys Ltd., 2002 (52) RLT 984 (CEGAT-Kol), wherein judgment was rendered by the CEGAT following its earlier judgment in Ispat Alloys Ltd. (supra), but the case of the petitioner was not considered. Therefore, since the law has already been decided applying the ratio thereof, the petitioner should have been extended with such benefit, but the order impugned has been passed without application of mind and without referring to the judgments cited by the petitioner. Therefore, the order so passed by the revisional authority is liable to be quashed. 4. Mr. T.K. Satapathy, learned Sr. Standing Counsel appearing for the Revenue vehemently contended to justify the order impugned passed by the revisional authority and sought for dismissal of the writ petition. 5. This Court heard Mr. Jagabandhu Sahoo, learned Se....
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....t is seen that though aforementioned judgments cited by the petitioner have been taken note of by the revisional authority in paragraph 3.11 thereof, but the said judgments have not been considered nor discussed in the judgment itself. Without taking into consideration of the same, the revisional authority has observed that no condonation of losses can be allowed. However, the Government notes that there is no case for imposition of penalty as adjudicating authority has not given any finding on the penal action and straightaway imposed penalty. As such, the Government sets aside the "personal penalty" imposed by the adjudicating authority and accordingly modified the order to that extent. Consequentially, conclusion arrived at by the revisional authority is an outcome of non-application of mind. If the decisions cited on behalf of the petitioner have been noted down, but the same have not been discussed, that indicates that there is clear non-application of mind by the revisional authority. 8. In Bar Council of Maharashtra v. M.V. Dabholkar, (1975) 2 SCC 702, at paragraph-59, the apex Court observed that certiorari is not confined by a narrow conception of locus standi. It contain....
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....the period when relief was granted and the period for which the impugned demand has been made has already determined that no levy is exigible. As long as the appellate order stands, it must be duly respected and only when the revisional authority vacates the order and holds that the decision of the appellate authority is wrong and the demand was justified, no demand should be raised. It has been indicated on more than one occasions by the Supreme Court with reference to directions of the Appellate Tribunal under the Income Tax Act that such directions are binding and decisions rendered by the appellate authorities should be respected by the subordinate revenue authorities and no attempt should be made to wriggle out of the binding decisions of higher authorities as long as they remain in force. ***" 13. In K. Ajit Babu v. Union of India, (1997) 6 SCC 473, it has been emphasized that there must be consistency, certainty and uniformity in the field of judicial decisions as it sets a pattern upon which future conduct may be based. One of the basic principles of the administration of justice is that identical/similar cases should be decided alike. Apt here to have regard to the follo....