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2011 DIGILAW 246 (KAR)

Gepach International v. Commissioner of Central Excise

2011-03-01

N.KUMAR, RAVI MALIMATH

body2011
JUDGMENT N. Kumar, J.— This appeal is filed challenging the order passed by the Tribunal 2004 (175) E.L.T. 911 (Tribunal), which has dismissed the appeal on the ground, that the Assessee no locus standi to prefer the appeal. 2. The Appellant is a partnership firm. It has a loan licence to manufacture P & P medicines. They used the facility of M/s. Karnataka Antibiotics and Pharmaceuticals Limited for the purpose of export. It is the case of the Appellant that it has manufactured under loan licence with KAPL and procured cefatrin 1 gm. injection for the purpose of export. Due to import licence, the goods could not be exported and had to be returned back to the factory of M/s. Karnataka Antibiotics and Pharmaceuticals Limited. The product's expiry date had elapsed and therefore, the Appellant sought for destruction of the said goods and for remission of duty on such goods lying at the factory. The Appellant preferred an application before the Deputy Commissioner of Central Excise, Bangalore 'E' Division for destruction of goods and also sought for remission of tax. The said request was rejected on the ground that remission under Rule 21 is not possible. An appeal was preferred before the Commissioner of Central Excise (Appeals) by the Karnataka Antibiotics and Pharmaceuticals Limited against the said order, which came to be rejected. Against the said order, an appeal came to be preferred before the Customs, Excise and Service Tax by the Appellant. The same was rejected with a finding that the Appellant is not a manufacturer and hence, the appeal is not maintainable. An application for rectification of mistakes was filed, which also came to be dismissed by the CESTAT. Aggrieved the said orders, the Appellant is before this Court. 3. This appeal was admitted on 3-7-2006 to consider the following substantial questions of law as under: (i) Whether the Tribunal was right in holding that the Appellant was not a manufacturer without recording any evidence, even when the applicant in statement of facts submit that he is a loan licencee considered as manufacturer under the Central Excise Law? (ii) Whether the Tribunal was right in holding that the Loan Licencee was not a manufacturer when the Department has vide para 3.2 of the Manual of Instructions construe such person as manufacturer when the frame of reference before the Tribunal was not the issue? (ii) Whether the Tribunal was right in holding that the Loan Licencee was not a manufacturer when the Department has vide para 3.2 of the Manual of Instructions construe such person as manufacturer when the frame of reference before the Tribunal was not the issue? (iii) Whether the Tribunal was right in passing an order on merits when no issue were framed at all by the Commissioner of Central Excise and that the Superintendent of Central Excise communicates the decision of the Commissioner of Central Excise? 4. The learned Counsel for the Appellant, assailing the impugned order, contends that admittedly, the Appellant is a Loan Licencee and is also called a Merchant Exporter, who infect executed a bond in favour of the Excise Department agreeing to pay the excise duty on completion of export obligations. Admittedly, the goods could not be exported. As the expiry was over, it had to be destroyed, therefore, they were entitled to get back the remission of excise duty. An application was filed, which was duly counter signed by the manufacturer and the same came to be rejected. It was the manufacturer who preferred an appeal against the said order, which came to be dismissed. It is, thereafter, the Appellant preferred an appeal against the said appellate order. He contends that as ultimately the duty is payable in pursuance of the bond executed by the Appellant, he is the person who is aggrieved by the order refusing to grant remission of the duty paid. Therefore, he contends that the appeal preferred by him was maintainable, as he is the aggrieved person. 5. It is not in dispute that under the Act, it is the manufacturer who has to pay the excise duly. Assuming that the Merchant Exporter had executed a bond undertaking to pay the duty on completion of the export obligations, he would not step into the shoes of a manufacturer under the Act for all purposes. His role is to be confined only in so far as discharging the liability to pay excise duty in terms of the bond. When the remission sought for by the manufacturer was refused, he challenged the said order. When it was dismissed, he has abandoned the legal proceedings. It is, thereafter, the Appellant preferred an appeal before the Tribunal. 6. It is well settled that an appeal is a statutory remedy provided to an aggrieved person. When the remission sought for by the manufacturer was refused, he challenged the said order. When it was dismissed, he has abandoned the legal proceedings. It is, thereafter, the Appellant preferred an appeal before the Tribunal. 6. It is well settled that an appeal is a statutory remedy provided to an aggrieved person. Once the statute provides a remedy to prefer an appeal, it has to be worked out under the Four Corners of the statute. When the Appellant is not the person who is liable to pay excise duty, the question of his claim for remission of the said duty payable would not arise. Merely because, he executed a bond undertaking to pay the duty on behalf of the manufacturer he would not step into his shoes so far as exercising the rights under the Act is concerned. Under these circumstances, if the request for remission is not considered by the Department, it is only the manufacturer who is entitled to challenge the said order as rightly pointed out by the Tribunal. The Appellant should have taken the permission of the manufacturer and could have challenged the order even though the manufacturer was not interested in prosecuting the appeal. But the Appellant has no independent right to prefer a statutory appeal without the consent or concurrence of the manufacturer. In that view of the matter, the order passed by the tribunal is legal and valid and does not call for any interference. Accordingly, the substantial questions of law are answered in favour of the revenue and against the Assessee. The appeal is dismissed.