CCE Vs. HAGEL CAPSULE INDUSTRIES LTD.

JUDGEMENT

(1.) THIS is the department's appeal against the above captioned order dated 6.7.1995 praying for setting aside the same and to restore the order -in -original of the Assistant Commissioner.

(2.) THE learned JDR has contended that there is no evidence produced to show the actual number of bottles lost due to breakage. No documentary evidence is produced. No records and accounts were produced to show the loss due to breakage. So the impugned order has to be set aside and the order of the Assistant Commissioner has to be restored on the ground the inputs cannot be said to have been used in or in relation to manufacture of final products under Rule 57A of the Central Excise Rules. The glass scrap obtained after the breakage of glass bottles was not akin to waste as contemplated in Rule 57D. Actual breakage of the glass bottles and end use of the broken glass bottles during the process of the manufacture is not established. The respondent in his submission has contended that by various replies to the show cause notices it was explained to the adjudicating authorities that during the process of manufacture certain bottles break which is unavoidable and Modvat credit is admissible under Rule 57D(1). The department could not establish the breakage of the bottles being abnormal or unreasonable. The Modvat credit availed on account of breakage is not recoverable or reversible. The appeal grounds reproduced the orders of the Assistant Commissioner. The impugned order has considered the issues raised by the department in the show cause notice and order -in -original. It was specifically submitted in the appeal before the Commissioner that regular records have been kept for the receipt of glass bottles, their issue for manufacture, the quantity of final packed products and the glass bottles broken during the course of manufacture. The proportion of broken bottles to the glass bottles used is very small and reasonable. There is no contrary allegation. There is no scope of breakage of any bottles in the process of filling the final product by the appellant which is not established by the department. The decisions in in the case of CCE, Bangalore v. Eros Pharma Pvt. Ltd. and CCE v. Glaxo (I) Ltd. apply to the case in hand.

(3.) PERUSED the authorisation issued in this case along with the appeal memorandum and the orders -in -original and orders -in -appeal. The authorisation dated 9.11.1995 issued by the Commissioner of Central Excise, Mumbai -I does not comply with the requirement of Section 35B Clause (ii) of the Central Excise Act. There is no conclusion by the Commissioner that the impugned order is not legal and valid. In the absence of it, the authorisation issued by the Commissioner is not proper as required under the above provisions. In such a circumstance, the appeal is not maintainable and cannot be allowed.