9911796707
TMI Blog2014 (2) TMI 1007X X X X Extracts X X X X X X X X Extracts X X X X ..... in Daman Ganga River in August, 2004. After the flood water receded the appellant took stock of situation and informed the departmental officers regarding loss of finished goods on which duty liability, approximately worked out as Rs. 27.70 lakhs and informed the department that such finished goods are unfit for human consumption and requested them to grant remission of duty. The said application was unanswered by the office of the Commissioner of Central Excise or the office of the Assistant Commissioner of Central Excise having jurisdiction over the appellant's factory. Subsequently on 27-8-2004, 27-1-2005 and 17-2-2005, appellants wrote reminders seeking the remission of the duty on the goods which were unfit for human consumption giving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the first paragraph. It transpires from the records that appellant did file for the remission of the duty on the finished goods which are unfit for consumption after the flood water engulfed the finished goods on 12-8-2004. The appellant has been diligent in informing and follow up with the jurisdictional Commissioner with three different letters, the last of the same letter was on 17-2-2005. On not receiving any response from the department, appellant vide letter dated 18-2-2005 informed the department that they will be destroying the said goods on 21-2-2005 at 11:00 A.M. in the presence of representative of Foods & Drug Authorities. Factually, the said goods were destroyed on 7-3-2005 as it transpires from the certificate issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the reliance placed by the ld. counsel on the judgment of Hon'ble High Court of Madhya Pradesh in the case of Godrej Foods Ltd. is correct, as their lordships was considering a similar situation in writ petition wherein their lordships have held as under : "8. It is clear in this case that well before destruction of the goods, the petitioner wrote to the respondents repeatedly informing that 5886 trays of the Great Soya Milk Shake were to be destroyed as they were unfit for human consumption. There is no explanation as to why the Department did not take timely action in the matter. A perusal of the letter dated 20-4-1990 (Annexure P-5) to the petition shows that it was categorically stated in the letter that the stock was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Department kept silent till the goods were destroyed despite repeated requests being made to depute Departmental Representative to supervise the destruction and when ultimately the goods were destroyed, they pounced upon the petitioner with the show cause notice. The action cannot be said to be just and fair. The petitioner has acted bona fide, has given due notice of the intention to destroy the product because it was unfit for human consumption. The requirements of the second proviso to sub-rule (1) of Rule 49 of the Central Excise Rules, were, therefore, complied with. In the circumstances of the case, the Department cannot take advantage of its own wrong by now claiming duty and penalty from the petitioner on the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X
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