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TMI Blog2008 (10) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. Shri K.K. Goyal, Jt. CDR and R.K. Verma, DR, for the Respondent. [Order per: Justice S.N. Jha, President]. - This appeal has come up be fore the Larger Bench for decision on the following issue: "Whether theft or dacoity would be unavoidable accident within the meaning of Rule 49 (of the Central Excise Rules, 1944) so as to merit remission of excise duty on the goods so lost." 2. The brief facts of the case are that the appellant is a manufacturer of copper sheets and circles. A dacoity is said to have been committed in the factory premises in the night of 30th April and 1st May, 1999 in which approximately 18,040 kgs. of brass/copper billets and sheets were allegedly taken away by the miscreants. In course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the case of fire or damage by flood etc where the goods are not available for consumption. In the case of theft, the goods are not lost or destroyed; they rather enter the market for consumption though illegally and therefore the person concerned cannot escape liability to pay duty Reliance was placed on the decision of Madras High Court in Golden Hills Estates v. CCE, Madras, 1997 (90) E.L.T. 301 (Mad.) Reference was also made to the decisions in Rane TRW Steering Systems Ltd. v. CCE, Chennai, 2003 (154) E.L.T. 557; B.G. Dhatu Udyog Ltd v. CCE, Delhi-III, 2003 (158) E.L.T. 624; CCE Chandigarh v. Royal Containers, 2006 (197) E.L.T. 381, Himalaya Granites Ltd. v. Assistant Commissioner of Central Excise, Chennai, 2007 (21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty under Section 5 read with the rules. 7. Rule 49 of the erstwhile Central Excise Rules of 1944 contained the provision regarding remission (corresponding to Rule 21 of the present Central Excise Rules of 2002). Since the dispute revolves around interpretation of. Rule 49, the same may be quoted so far as relevant as under: "49(1) Payment of duty shall not be required in respect of excisable goods made in a factory until they are about to be issued out of the place or premises specified under rule 9 or are about to be removed from a store-room or other place of storage approved by the Commissioner under rule 47: Provided that that the manufacturer shall on demand pay the duty leviable on any goods which are not accounted for in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some act of nature like fire, flood or a similar natural calamity. Besides, goods like molasses may also lose in quantity while in storage for environmental reasons. The act of forcibly removing the goods by any means - non-violent or violent - amounting to theft or dacoity under the Indian Penal Code cannot be said to be a natural cause. 'Theft' has been defined in the Indian Penal Code to mean dishonestly taking of any moveable property out of the possession of any person without his consent. Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 11. In Bavaji and Motibhai v. Inspector of Central Excise (supra) which is the sheet anchor of the appellant's case, there was a theft in the warehouse of the appellant which was reported to the police as well as the Superintendent of Central Excise. However, notice was issued demanding duty on the stolen goods. The appellant made a grievance that the demand had been made without any inquiry. In that context, the Calcutta High Court observed that under Rule 147 of the Central Excise Rules, 1944 the Collector has power to remit duty on warehoused goods lost or destroyed by unavoidable accident and the word 'accident' has been held by the Board in their Circular dated 28-11-1972 as including theft. The Court held that the Proper Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such goods. The terminology used in the provision 'lost' or 'destroyed' is not applicable to the facts of the present case, as it is stated that there was a theft, occurred in the bonded warehouse of the petitioner. So, the one and only point to be considered is, whether the petitioner is entitled for remission, because of theft? The necessary corollary would be, whether the terminology 'lost' or 'destroyed', used in the Section, would encompass the act of theft". 12. We find that different Benches of the Tribunal have taken similar view in the cases of Rane TRW Steering Systems Ltd. v. CCE, Chennai (supra); B.G. Dhatu Udyog Ltd. v. CCE, Delhi-III (supra); CCE, Chandigarh v. Royal Containers (supra); Himalaya Granites Ltd. v. Assist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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