TMI Blog2013 (9) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... ill removal of goods from the factory under Rule 8 of Central Excise Rules, 2002. This fact is not disputed by department also. Finished goods are still lying in the factory. The loss of goods due to floods is established with available documentary evidences of insurance report and intimation given by party. - The loss of goods due to floods is by natural causes or by unavoidable accident and the damage of goods are claimed to be unfit for marketing and their remission of duty involved on such goods is to be considered under Rule 21 of Central Excise Rules, 2002 - reversal of input credit when remission granted on final product destroyed in fire/accident is not required. The ratio of said judgments is squarely application to this case. As s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules, 2004 read with proviso to Section 11A(1) of the Central Excise Act, 1944, (iii) interest under the provisions of Section 11AB of the Central Excise Act, 1944, (iv) penalties under the provisions of Rule 25/27 of the Central Excise Rules, 2002; Rule 15 of the Cenvat Credit Rules, 2004 and Section 11AC of the Central Excise Act, 1944. 2.2 The matter was adjudicated vide order-in-original No. 8/2007-08, dated 23-7-2007 by the Assistant Commissioner, Bhyander Division wherein the demand of ₹ 1,27,665/- was confirmed under the proviso to Section 11A(1) of the Central Excise Act, 1944 and ₹ 36,151/- under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with proviso to Section 11A(1) of the Act, ibid and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the inputs have not been put to intended use, the credit availed on them has to be reversed whether the goods have been destroyed or otherwise. Therefore, the demand of ₹ 36,151/- on the raw materials is upheld along with interest thereon under Section 11AB. However, no penalty is required to be imposed under Rule 15 of the Cenvat Credit Rules, 2004 read with Section 11AC of the Central Excise Act, 1944, as there has been no intentional misutilization of Cenvat credit. Penalty of ₹ 5,000/- under Rule 27 of Central Excise Rules, 2002 without indicating which Rule has been contravened for invoking such penalty, is also set aside. The party is advised to apply for remission for regularizing the loss of finished products. 4. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 35EE of Central Excise Act, 1944 to file their counter reply. The respondent vide written reply dated 14-11-2011 made following submissions :- 5.1 The department in para 6.2 of their revision application have cryptically stated that the Commissioner (Appeals) has not properly appreciated the spirit of the judgment in the case of Grasim Ltd. v. CCE, Indore - 2007 (208) E.L.T. 336 (Tri.-LB). In the absence of the exact grounds as to how the Commissioner (Appeals) has not properly appreciated the spirit of the said judgment, we are at a loss to understand the grounds made by the department. However, we also beg to draw your kind attention that in para 6 of her impugned Order, the Commissioner (Appeals) has discussed the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no concept of unhealthy practice in the Central Excise law, as contended by the Department. Therefore, the contention of the department is not required to be accepted and the appeal may kindly be rejected as not sustainable. 5.3 The assessee further beg to submit that the Commissioner (Appeals) has set aside the impugned Order-in-Original No. 08/07-08, dated 23-7-2007 of Assistant Commissioner on merits and has not considered the other submissions made by the assessee as brought out in Paras 4.4, 4.5, 4.6 and 5 in the impugned Order-in-Appeal that the demand is barred by limitation, as extended period is not invocable in the absence of any suppression, mis-statement etc. as assessee had informed the department about the loss of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat duty is chargeable under Section 3 of Central Excise Act, 1944 but the payment of duty is deferred till removal of goods from the factory under Rule 8 of Central Excise Rules, 2002. This fact is not disputed by department also. Finished goods are still lying in the factory. The loss of goods due to floods is established with available documentary evidences of insurance report and intimation given by party. Respondent has again offered that said goods can still be inspected by department in their factory. 9. The loss of goods due to floods is by natural causes or by unavoidable accident and the damage of goods are claimed to be unfit for marketing and their remission of duty involved on such goods is to be considered under Rule 21 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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