TaxTMI 
TaxTMI 
2023 (6) TMI 783
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....re registered with the Central Excise Department. 4. It is stated that the production, storage and sale of molasses is carried out by the petitioner under the physical control and supervision of the State Authorities in accordance of U.P. Sheera Niyantran Niyamavali, 1974. It is argued that the Inspector of the State Excise Department is always posted at the factory to exercise the control and supervision as prescribed under the U.P. Sheera Niyantran Niyamawali, 1974. 5. It is stated that the molasses that emerged in the petitioners' factory are stored in steel tanks which are provided with calibration charts for calculating estimated quantity of molasses by volumetric method for the financial year 2007-08; the petitioner claimed remission of duty on the molasses lost due to storage under Rule 21 of the Central Excise Rules (hereinafter referred to as 'the Rules') by filing a remission application as is prescribed under the Rules. The department was of the view that the remission applications have been filed only to enjoy the benefit that flows from Central Board of Excise and Customs (C.B.E. & C.) Circular No. 261/15-CC/1/80-CX, dated 6-8-1982 and the petitioner ....
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....62.60 opening balance = 169143.22 1401.10/ 1.66 2325.82/1.38 1,79,670/-/1,08,236/- 30-6-2008 15-9-2008 7-1-2009/ 31-12-2009/ 28-6-2011/ 25-11-2013 Writ-C No. 1002508/ 2013 (Balrampur Chini Mills v. U.O.I. & Others) Tank No. 2 Tank No. 6 Tank No. 2 Tank No. 6 Tank No. 2/ Tank No. 6 7-1-2009 21-4-2009/ 2-12-2009/ 2-9-2011/ 28-1-2013 412085 302390 2681.20/ 0.65 2381.90/ 0.79 2,07,123/-/1,84,002/- Writ-C No. 1002507/ 2013 (Mankapur Chini Mills v. U.O.I. & Others) Tank No. 1 Tank No. 2 Tank No. 1 Tank No. 2 Tank No. 1/Tank No. 2 29-3-2008 15-10-2008/ 29-12-2009/ 20-6-2011/ 28-1-2013 3787. 30 2448.40 - - /1.34 2,92,569/-/ 1,89,139/- Writ-C No. 1002513/ 2013 (Mankapur Chini Mills v. U.O.I. & Others) Tank No. 1 Tank No. 2 Tank No. 1 Tank No. 2 Tank No. 1/Tank No. 2 29-3-2008 15-10-2008/ 29-12-2009/ 20-6-2011/ 28-1-2013 362320 312838 5743.70/ 1.59 5249.20/ 1.68 4,73,702/-/ 4,05,501/- Writ-C No. 1002512/ 2013 (Balrampur Chini Mills v. U.O.I. & Others) Tank No. 4 Tank ....
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.... last date of the verification would be relevant and this Court while deciding the issue in Balrampur Chini Mills Ltd. v. Commissioner of C.Ex., Allahabad, 2017 (349) E.L.T. 206 (All.) has observed in Para - 4 as under : "4. Admittedly, there is no allegation made by respondents that there is an abrupt removal of molasses from storage tank so as not to justify remission of aforesaid loss. In absence of any such allegation as also any statutory provision providing that the period of "a year" will not include part of year, if loss is less than two per cent, which has caused due to natural reasons, in our view remission could not have been disallowed/allowed to assessee. In taking an otherwise view, Tribunal has assumed certain facts which is not permissible for the reason that if any allegation is made against assessee by Revenue, the same would have to be proved by Revenue which burden cannot be side tracked by taking a plea that loss has caused in a very small period i.e. in an indirect way. Rule 8(4) of Rules, 1974, for its application, does not require that "year" would mean the entire period of 12 months, and not a smaller part thereof. In absence of any law other....
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....ciding the issue which arose in the case of Kishan Sahkari Chini Mills Ltd. (supra) had considered the scope of Section 11A of the Act and Rule 4, 8, 21 & 25 of the Rules. The said Section and Rules are quoted herein below : "SECTION 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) Where any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, for any reason, other than the reason of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, - (a) the Central Excise Officer shall, within two years from the relevant date, serve notice on the person chargeable with the duty which has not been so levied or paid or which has been so short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; (b) the person chargeable with duty may, before service of notice under ....
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.... notice or notices served under any of those sub-sections, as the case may be, a statement, containing the details of duty of central excise not levied or paid or short-levied or short-paid or erroneously refunded for the subsequent period, on the person chargeable to duty of central excise, then, service of such statement shall be deemed to be service of notice on such person under the aforesaid sub-section (1) or sub-section (3) or sub-section (4) or sub-section (5), subject to the condition that the grounds relied upon for the subsequent period are the same as are mentioned in the earlier notice or notices. (8) Where the service of notice is stayed by an order of a court or tribunal, the period of such stay shall be excluded in computing the period of two years referred to in clause (a) of sub-section (1) or five years referred to in sub-section (4), as the case may be. (9) Where any appellate authority or tribunal or court concludes that the notice issued under sub-section (4) is not sustainable for the reason that the charges of fraud or collusion or any wilful misstatement or suppression of facts or contravention of any of the provisions of this ....
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....re the liability of duty not paid or short-paid is self-assessed and declared as duty, payable by the assessee in the periodic returns filed by him, and in such case, recovery of non-payment or short-payment of duty shall be made in such manner as may be prescribed. Explanation 1. - For the purposes of this section and section 11AC,- (a) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (b) "relevant date", means, - (i) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid, and no periodical return as required by the provisions of this Act has been filed, the last date on which such return is required to be filed under this Act and the rules made thereunder; (ii) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid and the return has been filed, the date on which such return has been f....
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....duced in a khandsari sugar factory, the person who procures such molasses, whether directly from such factory or otherwise, for use in the manufacture of any commodity, whether or not excisable, shall pay the duty leviable on such molasses, in the same manner as if such molasses have been produced by the procurer. (3) xx xx xx (4) Notwithstanding anything contained in sub-rule (1), Principal Commissioner or Commissioner, as the case may be may, in exceptional circumstances having regard to the nature of the goods and shortage of storage space at the premises of the manufacturer where the goods are made, permit a manufacturer to store his goods in any other place outside such premises, without payment of duty subject to such conditions as he may specify. xx xx xx RULE 8. Manner of payment. - (1) The duty on the goods remove....
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....ed in sub-rule (1), the duty on the clearances in the month of November, 2015, by an assessee in the "State of Tamil Nadu and the Union Territory of Puducherry (except Yanam and Mahe), payable by the 5th or the 6th of the December, 2015, as the case may be, shall be paid by the 20th December, 2015 : Provided that where an assessee in the State of Gujarat is availing of the exemption under a notification based on the value of clearances in a financial year, the duty on goods cleared during the month of February, 2002 shall be paid by the 31st March, 2002. Explanation. - For removal of doubts, it is hereby clarified that the duty liability shall be deemed to have been discharged only if the amount payable is credited to the account of the Central Government by the specified date : (1B) Every assessee shall electronically pay duty through internet banking : Provided that the Assistant Commissioner or the Deputy Commissioner of Central Excise, for reasons to be recorded in writing, allow an assessee payment of duty by any mode other than internet banking. (2) The duty of excise shall be deemed to have been paid for the purposes o....
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....ns of this rule shall have effect as if for the expression "Principal Commissioner or Commissioner, as the case may be", the expression "Superintendent of Central Excise" has been substituted : Provided further that where such duty exceeds ten thousand rupees but does not exceed one lakh rupees, the provisions of this rule shall have effect as if for the expression "Principal Commissioner or Commissioner, as the case may be", the expression "Assistant Commissioner of Central Excise or the Deputy Commissioner of Central Excise, as the case may be," has been substituted : Provided also that where such duty exceeds one lakh rupees but does not exceed five lakh rupees, the provisions of this rule shall have effect as if for the expression "Principal Commissioner or Commissioner, as the case may be", the expression "Joint Commissioner of Central Excise or Additional Commissioner of Central Excise, as the case may be," has been substituted. (2) The authority referred to in sub-rule (1) shall, within a period of three months from the date of receipt of an application, decide the remission of duty : Provided that the period specified in this sub-ru....
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....6. Rule 8 prescribes that the time when the duty is payable on manufacture at the time of removal; that is to say, the duty is payable on the goods when they are removed from the factory or the warehouse. 17. In the case of molasses, there is a deeming fiction which provides that the molasses which are produced in Khandsar Sugar Factory is liable to duty "as if such molasses have been produced by the procurer". Thus, in the case of molasses, there is a deeming fiction of manufacture of molasses, however, the fact remains that the duty is payable even on molasses at the time of removal as prescribed under Rule 8. 18. In the present case, the petitioners claimed remission on loss of molasses due to natural causes, which was doubted by the department and a show-cause notice was issued calling upon the petitioners to show cause as to why the remission application may not be rejected and the duty may not be demanded. 19. In the entire show cause notice, which is on record, there is no allegation that the petitioners had clandestinely removed the molasses in contravention of Rule 8 and had not paid the duty thereupon. In the absence of any allegation to t....