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2015 (11) TMI 212 - CESTAT KOLKATA

2015 (11) TMI 212 - CESTAT KOLKATA - TMI - Remission of duty - Goods destroyed in fire - Held that:- No reasonable opportunity has been extended to the Appellants before their application for remission of duty, on the goods available in the factory premises and destroyed by the devastating fire on 22.11.2009, had been rejected. The argument of the department is that no separate hearing is required to be allowed as the Appellants were heard on 02.02.2012 in respect of demand notices, involving si .....

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effectively. After deciding their remission application afresh, the adjudicating authority would proceed with the adjudication of demand notices issued for recovery of duty. It is made clear that all issues are kept open and both sides are at liberty to produce evidences in their support. In the result, the impugned Orders are set aside - Matter remanded back - Decided in favour of assessee. - SPs. 76304-76305/2014 , Ex. Appeal Nos. 76161-76162/2014, Sps. 832-833/2012, Ex. Appeal Nos. 495-496/2 .....

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ations i.e. SP Nos.832,833,835 & 836/12 in Ex.Appeal Nos.495,496,497,498/12 are filed seeking waiver of pre deposit of duty and penalties as below: Sl.Nos. SP/Appeal Nos. Duty (Rs.) Penalty (Rs.) 1. SP-832/12 (Ex.Appl./495/12) 1,00,84,217/- 25,00,000/- U/Sec.25 (1) of Central Excise Rules,2002 2. SP-833/12(Ex.Appl./496/12) 6,30,08,725/- 10,000/- U/Sec.117 of the Customs Act, 1962 3. SP-835/12 (Ex.Appl./497/12) 1,65,45,712/- 50,00,000/- U/Sec.25 (1) of Central Excise Rules,2002 4. SP-836/12 ( .....

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1985. It is his submission that due to devastating fire in their factory premises on 22.11.2009 at around 8.55 p.m., the raw materials, goods in process and finished goods were destroyed. Necessary intimation of the said incident of fire was filed with the Department on 23.11.2009. Consequently, they have filed necessary application seeking remission of duty involved on the goods destroyed in fire, under Rule 21 of the Central Excise Rules, 2002, enclosing there with necessary documents/evidenc .....

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is the grievance of the Appellant is that even though personal hearing was extended to them in respect of the demand notices, on 02nd February, 2012, however, neither any notice was issued nor a personal hearing was accorded to them before rejection of the remission application. He submits that by not issuing any notice or extending personal hearing before deciding their remission application, principle of natural justice has been violated. It has also resulted grave injustice to them, inasmuch .....

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d in the DSA for 22.11.2009; but the ld. Commissioner in his order, observed that the Applicant failed to furnish the details of the stock position as on 22.11.2009. In nutshell, it is his contention that the stock position indicated as on 21.11.2009 in their DSA was the goods in stock, on which they claimed remission. Similar explanation could not be furnished against various adverse observations recorded in the impugned order, since the Applicants were not allowed an opportunity to present the .....

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d.Advocate, Shri S.Bagaria, appearing for the Applicants, M/s Humcha Impex Pvt. Ltd., has submitted that they are also an 100% EOU and engaged in the manufacture of Ready made garments and other Textile Articles falling under Chapter 61,62 & 63 of CETA,1985. In the same devastating fire on 22.11.2009, massive destruction of imported raw materials, capital goods and finished goods, had also resulted in their factory premise. He also submits that before rejection of the remission application, .....

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ir and just manner. 6. The Ld. Adv. vehemently argued that even though all the evidences were enclosed with the remission application, the ld.Commissioner has failed to consider the said evidences and rejected the remission application on the ground of non-production of evidences. Advancing further arguments the Ld. Advocate has submitted that even though in their first remission application filed with the Range Superintendent, on 12.01.2010, they have not referred to the relevant rules, under w .....

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jecting their remission application, has not at all discussed the applicability of Section 23 (1) of Customs Act, 1962 to the present circumstances. 7. The ld. Commissioner (A.R.) for the Department, has drawn our attention to the findings of the adjudicating authority while rejecting the remission application. Supporting the impugned Order the Ld. AR submits that while adjudicating the demand notices, the adjudicating authority has complied with the principles of natural justice. It is his plea .....

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authority to arrive at any conclusion whether the duty involved on the destroyed goods, have been compensated by the Insurance Company or otherwise. He submits that even till date, the Applicants had failed to produce these documents, so as to ascertain the correctness of the claim for remission of duty filed by them. He has further submitted that since the Applicants had deliberately not furnished all the evidences before the adjudicating authority, the remission Application has been rightly re .....

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that undisputedly, there has been a fire in the premises of the Appellants on 22.11.2009 resulting into destruction of raw materials, goods in process, finished goods and plant & machineries. In M/s Sarvapari Impex Pvt. Ltd.'s case, remission application was filed under Rule 21 of the Central Excise Rules, 2002, requesting remission of duty involved on the duty free indigenous raw materials, goods in process and finished goods. Whereas in M/s Humcha Impex Pvt. Ltd.'s case, remission .....

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on/order adversely affecting a person, be passed/issued without allowing a reasonable opportunity to the person affected to explain his position vis-a-vis the action proposed to be taken against him. In the present case, we find that no reasonable opportunity has been extended to the Appellants before their application for remission of duty, on the goods available in the factory premises and destroyed by the devastating fire on 22.11.2009, had been rejected. The argument of the department is tha .....

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