HINDUSTAN PETROLEUM LIMITED Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS is an appeal transferred to the Tribunal under Section 35P(2) of the Central Excises and Salt Act, 1944. The appellants M/s. Hindustan Petroleum Corporation Ltd. prayed for setting aside of the orders of the lower authorities who have levied on them duty of Central Excise amounting to Rs. 17,994.03 on 17.13 K. Litres of Palex 1500 classifiable under Item 11 -B of the Central Excise Tariff on the grounds that these goods were stolen from their warehouse on the night of 15/16 -5 -1977. In support of their prayer, they contend that these goods were stolen and in this case of theft, the duty on these goods should have been remitted in terms of Rule 147 of the Central Excise Rules, 1944. They, further, submit that the action of the lower authorities to treat this case as one falling under Rule 160 and demanding duty under Rule 9(2) is not correct. In support of their contentions, they have relied on Section 23 of the Customs Act, that provisions of which are analogous to those of Rule 147 of Central Excise Rules, 1944 and they further submit that the ratio of the Delhi High Court's judgment in the case of Sialkot Industrial Corporation v. Union of India 1978 (8) T.L.R. 1700 would be applicable to their case. They argued that for the purpose of Rule 147, that goods should be treated as having been lost within the meaning of word "lost" as interpreted by the Honourable Delhi High Court in the aforesaid case. They have also pointed out that it is only now with the Finance Bill of 1983 that Section 23 of the Customs Act is being amended and hence their case is fully covered by the ratio of the Delhi High Court. They seek support also from Bindra's Interpretation of Statutes, 5th edition, Page 61 containing the definition of "loss". As regards their failure to intimate the loss to the Central Excise authorities within 48 hours of the discovery of loss in terms of proviso to Rule 147, the appellants argue that this condition is not such as to deny the benefit of remission under Rule 147 to them. In case they have failed to give the notice within 48 hours, they may be charged with delay in submitting the notice, but they cannot lose the benefit of remission under Rule 147. They further rely on Calcutta High Court decision 1979 (4) E.L.T. Page 282, in the case of Bavaji and Motibhai to buttress their submission that as per Calcutta High Court's decision "loss" or "destruction" under Rule 147 includes theft. They repeat their contention that Rule 147 includes loss by theft. They also attack the order of the Assistant Collector on the grounds that his reliance on Rule 9(2) is incorrect. In brief, they submit that the point for decision is that whether their right of remission is taken away if the notice for loss is not given within 48 hours as per proviso to Rule 147. For the reasons adduced by them, they urge that they are entitled to remission as the goods have not been restored to them and pray for allowing their appeal.

(2.) THE departmental representative has opposed the submissions of the appellants. He has argued that under the proviso to Rule 147, the notice of loss was not taken within 48 hours and this proviso is a necessary condition to the grant of relief under Rule 147. Under the proviso, the Collector does not have any discretion to extend the time limit. Since the notice was not given as per Rule 147, the departmental representative has submitted that no relief is due to the appellants and that their appeal be dismissed.

(3.) THE appellants' representative has argued in reply that the submissions of departmental representative are not correct and applicable to their case.