9911796707
TMI Blog2009 (10) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... made on 6-6-2007/11-6-2007. The said claim has been rejected by the Commissioner on the ground that the appellants have not taken sufficient precautions as required under the law and the entry of flood water in the premises should have been anticipated and the assessee should have made attempts to remove the finished goods/inputs to a safer place. However, appellants have produced no evidence to show that they have taken such steps and instead they have claimed insurance which included Central Excise duty of Rs. 4,28,694/- also. She also relied upon the decision of the Tribunal in the case of Dharampal Satyapal Limited v. CCE, Noida - 2004 (167) E.L.T. 291 (Tri. - Del.) wherein it was held that appellants cannot permitted to take advantage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a after this water level was rising. He himself and Mr. Anil then ran outside the unit within compound in office area. They could not sleep that night. The water level started coming down next morning at 8 am and came upto 2 feet level by 6 pm and due to such all their stocks kept in Ally or front side got diluted in water and finally the water receded by next day morning. So due to such floods they had incurred a loss to SPCD, ZBS Hydro and 4 Sulpho etc. During the course of our survey we also noticed the empty sacks of stocks on the floor. From these sacks, stocks of various kinds had been diluted in the rain water due to flooding/inundation. The flow of the water even did not spare the storage tank of materials since the tanks in open c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f rain water could also be known from the fact that during our visit to the site while we were approaching the unit we noticed n the way that the road had been washed away due to flow of rain water. Due to this the stock of the insured at their plant was submerged & inundated in water and got affected. We also noticed that the materials in the liquid left behind after the liquidation due to water can be seen from the empty sacks. This also included the stocks of other parties, which was kept at the insured's factory for job work purposes and this stocks also washed away along with the stocks of the insured in the said incident of flood/inundation. The insured was subsequently asked to submit the various documents relevant to their claim, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enclosed here with this report. It is also observed that the insured had claimed the duty on finished goods instead of duty on raw materials consumed for producing the finished goods. The insured would be required to pay or reverse the Cenvat duty on raw material portion of the damaged goods of the finished goods as well as raw materials itself, as the insured would have taken the credit of such duty after the purchase of such raw materials in the normal course of operations but no finished goods could be sold in the market. However, the excise duty on the complete finished goods themselves is remitted under the Excise provisions and thus there is no claim for the same. The insured had informed us that they will be making reversal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the report of the surveyor that Rs. 4,28,694/- is after taking into account all the factors and it also shows that the surveyor was aware of the provisions of the Central Excise law and limited the claim to the amount of excise duty payable on the raw materials only since duty on final products could be remitted. This amount received from Insurance Company has already been paid by the appellants and they have claimed this amount was payable towards Cenvat credit contained on the finished goods. Accordingly, refund of difference between the reversal contained in the finished products destroyed in the flood and actual amount was claimed by them. In view of the fact that appellants have paid amount received by them from Insurance Company and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is received from the insurance company, the remission is to be granted. He relies upon the decision in the case of Sarda Plywood Industries Limited, Calcutta v. CCE, Shillong - 1987 (32) E.L.T. 116 (Tribunal). On going through the order of the Tribunal stated above, I find that this order was passed when remission was rejected under Rule 49 of Central Excise Rules, 1944. Sub- rule 1 of Rule 49 is relevant and is reproduced :- Rule 49. Duty chargeable only on removal of the goods from the factory premises or from an approved place of storage. - (1) Payment of duty shall not be required in respect of excisable goods made in a factory until they are about to be issued out of the place or premises specified under Rule 9 or are about to be remo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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