2017 (4) TMI 1211 - AT - Central Excise

Remission - loss of goods by fire - Rule 21 of CER, 2002 - Held that - the findings of the learned Commissioner are unsubstantiated and are not based on the evidences on record. It also appeared that the learned Commissioner misinterpreted the fire report - We also hold that it is the fire Department which is the authority to conclusively decide the reasons for the fire and also if there was any negligence on the part of the manufacturer assessee in compliance with any safety standards or conditions of consent to operate. Reversal of Cenvat Credit - amendment vide Notification No.33/2007 CE. - 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.

Summary

Issues:
1. Denial of remission claim under Rule 21 of Central Excise Rules, 2002.
2. Consequential demand disputed by the appellant-assessee.

Analysis:

Issue 1: Denial of Remission Claim under Rule 21:
The appellant filed appeals against the denial of remission claim under Rule 21 of Central Excise Rules, 2002 due to an accidental fire causing significant loss. The learned Commissioner rejected the remission claim citing negligence on the part of the appellant in mitigating the loss and non-compliance with safety norms. The Commissioner observed that immediate intimation to the fire department could have prevented the damage. However, the Tribunal found the Commissioner's findings unsubstantiated, emphasizing the lack of negligence on the appellant's part. The Tribunal held that the fire department is the authority to determine the cause of fire and any negligence. Consequently, the rejection of the remission claim was deemed unjustified, and the appeals were allowed in favor of the appellant.

Issue 2: Consequential Demand Disputed by Appellant:
During the remission claim process, a show cause notice was issued by the revenue demanding duty on finished goods, work in progress, and disallowance of Cenvat credit on capital goods destroyed in the fire. The demand was based on the introduction of Rule 5(C) in Cenvat Credit Rules and a CBEC Circular. However, the Tribunal noted that the rule amendment postdated the fire incident and was not applicable. Additionally, the reliance on the circular conflicted with the Supreme Court ruling in the case of Indchem Electronics. The Tribunal set aside the impugned order, allowing the appeal and granting consequential benefits to the appellant. The demand for Cenvat credit reversal on capital goods was also dismissed due to the absence of removal of such goods.

In conclusion, the Tribunal ruled in favor of the appellant, granting the remission claim and dismissing the consequential demands, highlighting the lack of negligence and misinterpretation of facts in the initial decision.