TMI Blog2017 (4) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... E. - The said amendment introduction of Sub-rule (5C) in Rule 3 of Cenvat Credit Rules, 2004 has been brought about much after the incident of fire and as such the said amendment/provisions are not applicable in the facts of this case. As regards capital goods the learned counsel has stated that as per Rule 3(5A) the demand of Cenvat credit by way of reversal on the capital goods arises only in case of removal of such capital goods - Appeal allowed - decided in favor of the assessee. - Appeal No. E/217/2009 & 52159/2015-EX [DB] - Final Order No. 70330-70331/2017 - Dated:- 30-1-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Atul Gupta Shri Hrishikesh, Advocates for Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was stated that due to major fire accident occurring in the late evening of 20th May, 2007 in which semi finished goods, finished goods and capital goods worth about ₹ 6,42,17,330/- got destroyed. The incident of fire was immediately reported to the Fire Service Department and the team arrived soon thereafter. The firefighting operation took nearly 22 Hrs. which was concluded in the evening hours of the next date that is 21/05/2007, as per the report issued by the Fire Department. The fact of earlier intimation to revenue was reiterated on 21/05/2007 by stating that formal FIR was launched with the police Department at Police Station Noida, Phase-II, District Gautam Budh Nagar, annexing a copy of the FIR. It was further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire, further undertaking to reverse the credit attributable to the inputs (which had not been issued for manufacturing process) damaged in the fire, as and when the same are removed from the factory. It was further stated that in the said fire accident capital goods namely plant and machinery including accessories valued at ₹ 5,52,52,233/- have also been damaged in the fire, further undertaking was given that the required credit would be paid at the time of removal of the said capital goods, which were not in removable condition. Accordingly, prayer was made for remission with respect to the Excise duty payable on the loss of finished goods completely destroyed in the fire. 4. The said remission application was decided by learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances such loss of goods cannot be considered on account of natural causes or unavoidable accident. Accordingly, the remission claim was rejected relying on the Ruling of this Tribunal in the case of M/s Dharmpal Satyatpal Ltd. 2004 (167) ELT 291 (Tri.) wherein it was held that no remission of duty is allowable if goods are destroyed due to negligence of the manufacturer. 5. Being aggrieved, appellant is before this Tribunal. The learned Counsels for the appellant have urged that the findings of the learned Commissioner are vitiated. They are based on assumption and presumptions and not based on the records of the Department. He took us through the fire report wherein it is evident that the firefighting operation took abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were instructed to be more vigilant and keep the fire fighting equipments in working order and also regular training to the workmen for the user etc. The learned Counsel urges that it is nowhere coming out from the fire report that there was any negligence on the part of the appellant, being the reason for fire or the factory was being operated without consent of the fire Department and/or was lacking in any terms of the consent. Under these facts and circumstances the rejection of the remission claim is unjustified and accordingly, he prays for allowing the appeals with consequential benefits. 6. The learned A.R. for revenue has relied on the impugned order. 7. Having considered the rival contentions, we find that the findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith interest. The said SCN was adjudicated on contest and the proposed demands were confirmed to be recovered along with interest on the finding that in view of the amendment in the Cenvat Credit Rules wherein Sub-Rule 5(C) was introduced in Rule 3 with effect from 07/09/2007 vide notification No.33/2007 CE. The said Rule provides as follows Rule 5(C) where on any goods manufactured or produced by an assessee, the payment of duty is ordered to be remitted under Rule 21 of the CER 2002, the Cenvat credit taken on the inputs used in the manufacture or production of said goods shall be reversed. 9. The learned Commissioner further placed reliance on CBEC Circular No. 907/27/2009 CX dated 07/12/2009 which deals with respect to Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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