9911796707
TMI Blog2019 (9) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,38,183/- alongwith equivalent penalty under Rule 25 of Central Excise Rules, 2002 and applicable interest under section 11A of the Central Excise Act, 1944. 2. The Appellant is engaged in the business of manufacture of coal tar pitch, naphthalene, etc. On 28.02.2010 at around 11:00 AM, an incident of fire took place at the Appellant's factory at Khenghati, Sambalpur during the process of distillation. Due to the said fire, certain finished goods, raw material and machinery got destroyed. The Appellant intimated the jurisdictional authorities about the fire incident pursuant to which several correspondences took place, followed by the visit of the Central Excise officers to the factory premises. A Show Cause Notice dated 03.03.2011 was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted along with the letter. 23.03.2010 Referring to the above letters dated 01.03.2010 and 12.03.2010 submitted by the Appellant, the Superintendent, SBP Range, requisitioned certain documents with regard to the fire accident and asked for arranging for scattered goods for physical verification. 25.03.2010 03.04.2010 Letter submitted by the Appellant to the Department requesting them for physical verification of the scattered goods 23.06.2010 Certificate of Fire incident issued by the Office of the Fire Department was submitted to the department. 28.06.2010 Appellant submitted several documents as desired by department for claiming the remission of duty on goods lost by fire. 06.10.2010 The Superintendent, Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 03.03.2011 received by the Appellant 17.03.2011 Appellant intimated the Superintendent, SBP Range, that stock lost on fire is being deducted from DSA register. 30.03.2017 Order-in-Original passed by the Adjudicating Authority 23.02.2018 Order-in-Appeal passed by the Commissioner (Appeals), Bhubaneswar 4. The Ld. CA took this Tribunal through all the above correspondences, as enclosed in the Memorandum of Appeal. He stated that the impugned demand had been raised without proper consideration of facts on record which has neither been disputed by the Adjudicating authority nor the Appellate authority. He emphasized that when goods are destroyed in a fire accident against which application for remission is pending for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be enforced as the same is legally payable in absence of remission certificate. 6. Heard both sides and perused the appeal records. 7. In the impugned Show Cause Notice (SCN), I find that the reasons assigned for proposing the duty demand were the shortage of goods found during physical verification on 10.01.2011 and that the details of such goods were not reflected in the ER-1 returns filed during the impugned period from 28.02.2010 to 10.01.2011. I find that the said physical verification was carried out as per the request of the Appellant to verify the destroyed goods and grant permission to restart production. 8. In the Adjudication order, no finding has been given by the Asstt. Commissioner about the various correspondences exchang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate was under active consideration by the Department. In view of the above, I find that the Appellant could not be made to suffer for the inaction on the part of the Departmental authorities. Since there is no evidence on record to show that the prayer for remission was rejected, the only conclusion that can be drawn is that the instant demand is wholly pre-mature which cannot survive in the eyes of the law. Further, I find that the findings of Asstt. Commissioner and the Ld. Commissioner (Appeals) are contradictory. The Ld. Commissioner (Appeals) in para 5.2 of his order has clearly observed that there is no doubt that the fire accident occurred in the factory of appellant on 28.02.2010 whereas, the Ld. Asst Commissioner in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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