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TMI Blog2019 (4) TMI 1682X X X X Extracts X X X X X X X X Extracts X X X X ..... er an unreasonable delay. Unreasonable delay is, of course, a question of fact and the same varies from case to case. In the instant case, there was no strict adherence to the internal manual of the department noted in the Order-in-Original and Order-in-Appeal which prescribes that if the matter was not reported within 24 hours, no such remission is admissible. On the other hand, as found from the evidence and record, reporting was done within 24 hours to Fire Brigade and at the Police Station respectively but it was not done to the proper officer of the excise authority for determination of the extent of damage - such procedure lapse cannot take substantial justice away. Further, any prudent man can make out from the factual sequence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twice to the lower authorities for a decision on remission application against finished and capital goods destroyed due to fire incidence, appellant has assailed the Commissioner order confirming such rejection of remission application. 2. Happenings that has been given rise to this litigation is that fire incident occurred in the appellants factory engaged in manufacturing of disposable safety razor blades, shaving kits etc. on 02.06.1998. Appellant reported the matter to the Fire Brigade, local Police Station, Thane Municipal Corporation and to the Insurance Authorities soon after the occurrence against which it got insurance reimbursement to the tune of ₹ 31,56,076/- on 22.03.2000 including fire damage and other los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bert Pharmaceuticals Pvt. Ltd. Vs. Commissioner of Central Excise, Thane reported in 2004 (184) ELT 396 (Tri.-Mumbai), Mira Chemicals Vs. Commissioner of Central Excise, Surat-II reported in 2009 (324) ELT 328 (Tri.-Ahmd.) etc., submitted that no time limit is prescribed for filing application for remission and the internal manual prescribing reporting of such incidence to the department within 24 hours of occurrence is a procedural lapse which can be remediable and basing on the decision reported in Commissioner of Central Excise, Nhava Sheva Vs. Hindalco Industries Ltd. - 2011 (272) ELT 161 (Bom.) and VFC Industries Pvt. Ltd. Vs. Commissioner of Central Excise Service Tax, Vadodara-II - 2017 (352) ELT 507 (Tri.-Ahmd.) etc., he fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er losses. Proviso to Rule 39 of the Corresponding Central Excise Rules provides for making demand for payment of duty leviable on any goods which are not shown to the satisfaction of proper officer to have been lost or destroyed by any natural calamity or by unavoidable event during handling or storage. Admittedly proper officer could not have got the particulars to assess the destruction as reporting was done about 2 years of the occurrence but going by the show-cause notice, one can very well infer that the duty demand has been made on the basis of damage assessed by the insurance authorities. This being so, it can be said that assessment had been made by the department concerning the exact damage on which duty demand has been raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 57 of the MODVAT Rules, the Commissioner had observed that the goods on which appellant had availed MODVAT credit cannot have attained the character of inputs since appellant claimed that they had been destroyed in the fire for which there was no possibility of those goods being used (further) in relation to manufacture of final products and they were not fit for the intended use in the factory. If this is the observation of the Commissioner then in the normal circumstances, he would have treated those as unusable scrap having nil value and would not have ordered for reversal of credit availed on it. Hence the order. ORDER 7. The appeal is allowed with consequential relief of acceptance of remission clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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