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TMI Blog2006 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, read with Section 11A of the Central Excise Act, 1944, due to non-accountal of 1500 Kgs. of primary foam blocks valued at Rs. 1,80,000/-. 2. In the show cause notice dated 25-4-1995, the appellant was called upon to show cause as to why duty amounting to Rs. 54000/- on 1500 Kgs. primary foam blocks, said to have been destroyed in the fire accident on 5th/6th December, 1994, should not be demanded under Rule 9(2). 2.1 In their reply to the show cause notice, it was contended by the assessee that the accident was caused due to chemical reaction of the inputs that had gone into the final product, which awaited further processing on it, such as cutting of block of foam into sheets etc. It was contended that the combustion due to chemical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le accident and that the application for remission was rejected by the Commissioner as communicated by the order dated 7-6-2002 to the appellant. It was held that, "in these circumstances the adjudicating authority had no option but to confirm the demand as raised through show cause notice dated 25-11-1995." The appeal was, therefore, dismissed. 4. It was contended on behalf of the appellant that the goods were destroyed in the factory before removal and therefore, the appellant was entitled to the benefit of the provisions of Rule 49 and the authorities below have wrongly invoked the provisions of Rule 147. It was also submitted that the copy of the order dated 7-6-2002, rejecting the application of the appellant for remission of duty, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts. Such interim orders of the Tribunal, therefore, ought not to be cited as binding precedents for deciding other matters. 4.1 The learned counsel also relied on the decision in Shiva Essential Oils Chemicals v. Commissioner of Central Excise, Noida, reported in 2004 (168) E.L.T. 121 (Tri.-Del.), in which it was held that the discretion conferred on the Collector of Central Excise to remit the duty, if the goods are lost or destroyed by an unavoidable accident cannot be exercised arbitrarily, but has to be exercised judicially and according to law. 5. The learned authorized representative for the department supported the reasoning and findings of the authorities below and submitted that the appellant had admitted in the memo of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty on warehoused goods lost or destroyed and provides that, if any goods lodged in a warehouse are lost or destroyed by unavoidable accident, the Commissioner may in his discretion remit the duty due thereon provided that, if any goods be so lost or destroyed in a private warehouse, notice thereof shall be given to the officer-in-charge of the warehouse within forty eight hours after the discovery of such loss or destruction. 7. Rule 147 falls in Chapter VII dealing with warehousing. Under Rule 140, the Commissioner is empowered to approve and appoint public warehouses and to register private warehouses for the storage of excisable goods on which duty has not been paid. Obviously, therefore, the power to remit duty under Rule 147 is exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er under Rule 147 in respect of warehoused goods could have decided the non-accountal goods, which are said to have been destroyed before their removal in the context of the proviso to sub-rule (1) of Rule 49. It was necessary for the Commissioner (Appeals) and the adjudicating authority to have examined and indicated in their orders as to the nature of the power which was to be exercised while making orders dated 7-6-2002, because the proviso to sub-rule (1) of Rule 49 and Rule 147 operate in distinct fields of their own. The authorities below have virtually, refused to go into the merits of the appellant's claim made in the context of the proviso to sub-rule (1) of Rule 49 on the ground that the Commissioner had rejected the appellant's c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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