9911796707
TMI Blog2008 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate, for the Appellant. Dr. Nitish Birdi, SDR, for the Respondent. [Order]. - The instant appeal has been filed by M/s. Indo Swiss Jewels Ltd. (ISJL). In the impugned order, the Commissioner had rejected the claim for remission of duty amount of Rs. 3,53,020/- on goods claimed by the appellant to have been damaged and not fit for marketing. He also imposed a penalty of Rs. One lakh under Rule 173Q on the appellants. The facts in brief are, that ISJL sought remission of Rs. 4,38,373/- being duty on 9,05,516 pieces of Mineral Watch Glass Crystals and Rs. 9683/- on 1,23,000 nos. of Watch jewels, on the ground that they had got damaged in a riot that took place in their factory on 5-8-98. It appears from the records that ISJL was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or remission. Penalty was imposed on the assessee for contravention of Rule 47 read with Rules 49 and 223 of erstwhile Central Excise Rules, 1944. 2. The ld. Counsel for the appellants submits that the department has no case that the impugned goods had not actually been damaged and rendered unmarketable. The Commissioner had been convinced that the assessee's claim that the impugned goods had been damaged during the riot on 5-8-98. 3. The ld. Counsel submits that as per a report dated 20-2-04 issued by the jurisdictional Assistant Commissioner, the adjudicating authority was informed that the impugned stock of excisable goods was available with the assessee and had become unmarketable. On a visit to the factory, it had been seen tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Remission was not admissible unless the assessee had taken sufficient reasonable precaution to prevent an accident from destroying or damaging the excisable goods. The assessee had to behave with responsibility and safeguard the manufactured goods. He defended the impugned order and prayed that the order may be sustained. 5. I have carefully considered the facts of the case and submissions by both sides. As per Rule 14 of the erstwhile Central Excise Rules, 1944 (CER), an assessee shall not be required to pay duty on any excisable goods made in a factory until they are about to be issued out of the premises specified under Rule 9 or to another place of storage approved by the Commissioner. As per the first proviso to Rule 49, the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was much higher than the stake of the revenue. The finding of the Commissioner that the assessee did not foresee the probability of damage to its finished goods is a finding without any basis. It is also seen that the penalty has been imposed on the assessee invoking Rule 173Q for contravention of Rule 47 read with Rule 223 and Rule 49 of erstwhile CER. This is again not justified if one sees the scope of the provisions found to have been contravened. In the circumstances, the impugned order is set aside and the appeal filed by ISJL allowed. As requested by the ld. Counsel for the appellants on instruction, the impugned goods shall be destroyed and the claim for remission allowed. (Dictated and pronounced in open Court) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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