TMI Blog2007 (3) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... /-, under Rule 49 of the Central Excise Rules, 1944 on the ground that the goods were taken away by the dacoits during the night between 30th April, 1999 and 1st May, 1999. 3. Under Section 3 of the Central Excise Act, 1944, it is inter alia, provided that there shall be levied and collected duties of excise on all excisable goods which are produced or manufactured in India as, and at the rates specified in the Schedule to the Central Excise Tariff Act, and in such a manner as may be prescribed. The word prescribed as defined under Section 2(g) means prescribed by the rules made under the Act. 3.1 Rule 49(1) of the said Rules provides that, duty to be chargeable only on removal of goods from the factory premises or from an approved place of storage, by laying down that 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 in Rule 9, or are about to be removed from a store-room or other place of storage approved by the Commissioner under Rule 47. The first proviso to Rule 49(1) strikes a dedicate balance, by providing on one hand that, if the goods are not accounted for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is used, in a popular and ordinary sense of the word, as denoting an unlooked for mishap or an untoward event which is not brought about by intention or design. It is however, unnecessary to attempt any uniform definition of a term which has the utility of answering varied situations. This term has to be applied in law to any occurrence or result that could not have been foreseen by the agent (because not necessarily involved in his action) or to a result not designed (and therefore, presumably not foreseen) or lastly to anything unexpected. The question as to what will and will not constitute an accident under a given circumstance would depend upon the facts of each particular case and would be a mixed question of law and facts. Accidents can broadly be divided into two categories, viz. where there is some external act, agency or mishap and those where there is no such external act, agency or mishap. In legal contemplation, accident happens without any designed, intentional or voluntary causation such as an occurrence which happens by reason of some violence, casualty or vis major without any design or consent or voluntary co-operation. An unexpected personal injury resulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be an accident. In our view, such expectancy test would be a fallacious test. When an unexpected injury occurs then it can be termed as an accident, but that does not mean that whenever any injury is expected, then it could never be an accident. If likelihood of an occurrence in abstract thinking is to be test, then there would hardly be anything which is not thought of as a likely occurrence by men. One can always expect animals to bite or gore but when a person is himself bitten or gored by an animal, that would be an unexpected harm to that person. Mere knowledge of hazard of an occurrence will not take it away from the category of accident in its general sense. Albeit, the law may in a given context define accident to restrict its wider meaning and dilute it to what is called a pure accident but there is no warrant for such restricted meaning in context of the above clause of the Insurance Policy. 9. The argument that if the occurrence could be avoided by reasonable diligence or that if negligence or carelessness have contributed to the event, it should not be treated as accident, if accepted, would abort the very purpose underlying such Insurance Policy which does not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a death resulting from an accident caused by outward, violent and visible means within the meaning of the accident benefit clause of the policy under which the LIC was bound to pay an additional sum equal to the sum assured under the policy. 5. However, in the specified context of said provisions of Rule 49, of expression unavoidable occurring under Rules 49 and 147 of the said Rules, there is divergence of opinion even between the Division Benches of the Tribunal which has been brought to notice. It is being pointed out on behalf of the appellant that in Mahindra and Mahindra v. CCE, Mumbai reported in 1988 (33) E.L.T. 517 (T), a Division Bench of this Tribunal, following the ratio of the decision of the Calcutta High Court in Bavaji and Motibhai v. Inspector (supra), has held that the goods lost by the assessee in theft and robbery were goods lost by unavoidable accident (See Paras 16-17 of the judgment). It was submitted that the ratio of the decision in Mahindra and Mahindra (supra) was followed in the following cases by the Tribunal :- 1. Sialkot Industrial Corpn., Meerut v. Union of India - 1979 (4) E.L.T. J 329 (Del.); 2. CCE v. Bihar State Sugar Corpn. - 1985 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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