TMI Blog2019 (9) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in the fire incident. The only finding given by the Asstt. Commissioner in the Adjudication order is that the Appellant could not furnish the remission certificate to claim waiver from payment of duty - In any case, mere fact of non-submission of remission certificate is not sufficient to draw an adverse inference to level the allegation of clandestine removal. 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, the findings of Asstt. Commissioner and the Ld. Commissioner (Appeals) are contradictory. Lastly, it is now well accepted that the charge of clandestine clearance is a serious charge for which the department has to show positive evidences against the assessee corroborating various factors like unaccounted procurement of raw material and labour, sale of finished goods in cash, etc. - In the instant proceedings, there is no evidence regarding recording of statements of buyer or transporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is as under: Date Event 28.02.2010 Accident of fire took place in the factory 01.03.2010 The Appellant intimated the department about the fire accident in the factory and applied for remission of duty before the Deputy Commissioner with a copy to the Superintendent, Sambalpur Range, and the Commissioner, Bhubaneswar, along with request for physical verification. 11.03.2010 Physical verification undertaken by the Superintendent, Central Excise (Prev.), Sambalpur (SBP) and the Superintendent, Central Excise, SBP range 12.03.2010 Appellant requested the Deputy Commissioner, SBP, for granting the permission to restart the production with the necessary repairing/replacement. Copy of the stock statement certified by Chartered Accountant was 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06/2011/3745-47A 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 before the authorities, confirmation of duty demand duty on the said goods on the allegation of clandestine removal is not only premature but also harsh and against the Principles of Natural Justice. He also submitted that when there is no dispute regarding loss of goods due to a fire incident, no demand c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificate to claim waiver from payment of duty. He further observed that his office was not competent to decide the issue of remission of duty. Having noted that the Appellant had furnished the Fire Certificate issued by the concerned Fire Department and other relevant documents, he yet doubted the occurrence of fire without disputing the veracity of the Fire Certificate issued by the fire department and other documents submitted by the Appellant. More surprisingly, he observed that it could not be ascertained if the goods were actually destroyed in fire as significant amount of time had elapsed and no remission certificate had been produced by the Appellant. In any case, mere fact of non-submission of remission certificate is not sufficient to draw an adverse inference to level the allegation of clandestine removal. 9. The Appellant submits that it had made all possible efforts to obtain the remission certificate. Moreover, it was also confirmed by the Central Excise Department vide letter dated 06.10.2010 that the request for remission 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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