TMI Blog2007 (11) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed against Order-in-Appeal No. to pay BR/111/M4V dt. 18-7-2005. 2. Considered the submissions made by both sides and perused the re merits, cords. The issue involved in this case is regarding the confirmation of the demand of duty involved in the capital goods lost during the fire accident in the factory premises of the appellant. The adjudicating authority issued show cause consider notice to the appellant on 19-8-2002 based upon the audit objection that the appellant is ineligible to avail Modvat credit on the capital goods and inputs like despite it Oil, spare parts, capital goods etc. The adjudicating authority confirmed the demand and imposed penalty. The Id. Commissioner (Appeals) upheld the Order- in-Original, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to unjust enrichment of the appellants, at the cost of Revenue, which can never be the intention of law. The appellants have not lead any evidence to show that the insurance claimed by them did not include the element of excise duty. The insurance claim was for entire value, which includes duty element. The C.A. Certificate does not disclose any material/details on the basis of which the same is given. Further, clearance of damaged inputs, as scrap, on payment of duty, will also not help, as the said scrap was not generated during the manufacture of final products. Further, the appellants have also not produced any evidence that the fire accident was intimated to the department. Thus there is no evidence that remission of duty from compete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and duty paid thereof, if any. Contradicting this finding, the appellant produced Chartered Accountant Certificate before the Commissioner (Appeals). The said Chartered Accountant Certificate is also produced before me, which is read. "We hereby certify that M/s. The Bombay Dyeing Manufacturing Company Limited (Textile Mills) located at Prabhadevi, Mumbai 400 013 has not claimed the duty element of Rs. 78,988/- towards spare parts in Spinning Dept. and Rs. 45,360/- towards spare parts/oil/electrical items in Finishing Dept. in the insurance claim filed by them during the financial year 1999- 2000 for the damage of said goods in the fire". The Id. Commissioner (Appeals) has discarded the evidence of Chartered Accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to reverse the input credit taken in this case and we do not find any reason to interfere with the order passed by the lower appellate authority. Accordingly the Revenue appeal is dismissed". Against the above judgment and order of the Tribunal, the Revenue went in appeal to the Hon'ble Supreme Court and Hon'ble Supreme Court vide its order dt. 4-4-2003 [2003 (157) E.L.T. A206 (S.C.)] dismissed the Special Leave Petition. As such, the decision of the Tribunal in the case of Indchem holds the field on an identical issue. 4. Accordingly, I am of view that the appellants have made out a strong case for setting aside of the impugned order, which confirmed the demand of the duty and imposed penalty. The impugned order is set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
