TMI Blog2015 (4) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... to careless smoking of biris and cigarettes. This opinion, as a matter of fact was not disputed by Sri D.K. Srivastava, Finance Controller appearing on behalf of assessee before Excise Commissioner - assessee failed to lead any evidence whatsoever before the authority concerned to show as to what steps it has taken to avoid accident, if any, caused by fire and that accident in question was for unavoidable reasons. - Revenue has committed manifest error in law and therefore reasons assigned by Tribunal in allowing assessee's appeal is clearly erroneous - Decided in favour of Revenue. - Central Excise Reference No. - 8 of 2009 - - - Dated:- 19-3-2015 - Hon'ble Sudhir Agarwal And Hon'ble Shashi Kant,JJ. For the Applicant : C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Cigarettes used by workmen of assessee industrial undertaking. However, Tribunal has taken otherwise view while allowing assessee's appeal observing that report of Chief Fire Officer was only an opinion based on no evidence whatsoever and department could not prove as to what precaution or steps were taken by assessee to avoid fire accident in the factory. The relevant extract of the findings of Tribunal is as under : As rightly contended, the averment of the Chief Fire Officer that the fire accident could be due to careless smoking of biris and cigarettes is only a matter of opinion and this is not based on either on account of any evidence or as a result of an enquiry conducted by him in the matter. The Commissioner in his orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such conditions as may be imposed by the [Commissioner] by order in writing. (2) Notwithstanding anything contained in sub-rule (1), excisable goods made in a factory to which provisions of Chapter VII of these rules have been extended by the Central Government by notification in the Official Gazette, may be removed from the factory in which they are made to any warehouse [registered] under rule 140 for the storage of such goods and situated outside the [registered] premises of the factory and subject to such exemptions, limitations and conditions as may, from time to time, be specified in this behalf by the Central Government. [(3) Notwithstanding anything contained in sub-rule (1), the Central Government may, under circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad no control. Obviously, in order to avoid duty payable under Rule 49 of Rules, 1944, onus is on assessee to prove that accident occurred due to reasons beyond his control and he could not have avoided it. 7. In the present case, Chief Fire Officer gave opinion that it may be due to mishandling of workforce of assessee i.e. due to careless smoking of biris and cigarettes. This opinion, as a matter of fact was not disputed by Sri D.K. Srivastava, Finance Controller appearing on behalf of assessee before Excise Commissioner and in his written submission he clearly stated as under : It is observed that Shri D.K. Srivastava, Finance Controller of the factory in his written submission also did not deny the report of the Chief Fire Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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