TMI Blog2008 (9) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... ven otherwise, duty due on the goods lost in theft before the same reached the port of export should be held to be qualified for remission under Rule 49 of Central Excise Rules 1944 (Rule 21 of central excise rules, 2002) - appeal of Revenue dismissed. - E/152/2002/MAS - 1088/2008 - Dated:- 25-9-2008 - S/Shri P.G. Chacko, Member (J) and P. Karthikeyan, Member (T) Shri V.V. Hariharan, JCDR, for the Appellant. Shri J. Sankararaman, Advocate, for the Respondent. [Order per : P. Karthikeyan, Member (T)].- Revenue has filed this appeal. In March, 1998, M/s. Sree Narasimha Textiles, an EOU, had exported a consignment of cotton yarn. The goods were examined by the jurisdictional officers of Central Excise and allowed clearance unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order of the original authority. 2. The Revenue has filed the appeal on the ground that duty was not collected on the export goods initially on the assessee's undertaking to export them. As the goods had not been exported, duty due was payable by them. No remission could be allowed as the loss had taken place due to lack of vigilance by the EOU. EOU had received compensation from insurance for the goods lost and Rs. 73,539/- in excess of the actual and it would not suffer additional burden by paying the duty. 3. Heard both sides. The ld. Counsel produced copies of the following decisions of the Tribunal, all of which held that remission could not be denied when goods had been lost due to theft. (1) G.K. Enterprises (P) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional Assistant Commissioner admitted proof of export, department cannot raise a claim for duty on the ground that the goods had not been exported. Even otherwise, duty due on the goods lost in theft before the same reached the port of export should be held to be qualified for remission under Rule 49 of Central Excise Rules 1944 as there is no finding that the loss occurred due to any willful act on the part of the respondents or default or negligence. Theft is an unavoidable accident unless the respondent's negligence caused it. There is no such finding against the respondent. In the circumstances we find that the respondents do not have to bear the duty due on the impugned goods, or suffer any penalty on that account. In the result t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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