TMI Blog1996 (7) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantity found to be shortage had been stolen from the warehouse and the matter was being investigated. The authority issued show cause notice on 17-2-1969 as to why penalty should not be imposed, the remaining stock of tea should not be confiscated along with land, buildings, machinery etc. and a duty should not be imposed on the missing goods. In the proceedings the first authority namely, the Collector, passed an order imposing a penalty of Rs. 5,000/- confiscating the property and assessing the duty on the goods. On appeal, the Central Board of Excise and Customs reduced the penalty of Rs. 5000/- to Rs. 1000/-. In other respects the order of the Collector was confirmed. On a revision to the Government, the order of penalty was set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Calcutta High Court in Bavaji and Moti Bai v. Inspector of Central Excise and Others reported in 1979 (4) E.L.T. (J 282). A learned Single Judge of that Court held that loss by theft would fall within the scope of the Rule. The relevant part of the judgment reads as follows :- "Under Rule 147 of the said rules, the Collector has power to remit duty on warehoused goods lost or destroyed by unavoidable accident. The word accident has been appropriately held by the Board, in their determination dated 28th November, 1972 in Annexure `F', to include "theft" and further more in my view the word "lost" as mentioned in the said Rule would also include "theft" and as such the application as filed by the said firm, was competent and the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Collector - 1990 (49) E.L.T. 534 (Tribunal). In that case there was no consideration of the provision to Rule 147 of the Central Excise Rules, 1944. Tribunal had no occasion to discuss the question whether loss by theft would amount to loss by unavoidable accident. 8.Only ruling which supports the contention of the appellant is that of the Calcutta High Court referred to above. With due respect we are unable to agree with the reasoning found in the judgment of the Calcutta High Court. In our opinion the word unavoidable accident is of crucial importance. Theft cannot be said to be an accident by any stretch of imagination. When a person deliberately removes the goods for his own purposes without the knowledge of the owner thereof, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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