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TMI Blog2023 (5) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... uential action and when the appellant replies, the adjudicating authority would take into consideration the replies submitted by the assessee and come to a conclusion whether remission under Rule 21 is required or not and there was no requirement of application for remission in this case and the reply to the show cause notice is sufficient for claiming the remission if the appellant is otherwise liable for remission as per the legal provisions. In the present case the entire case has been made out against the appellant for failure to get a proper order for remission - taking into account all facts that the goods have been destroyed in fire, remission could have been ordered at the time of adjudication of this case. There is no case made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s some fire in the factory of the appellant on 09.06.2006 in which certain finished goods valued at Rs.6,32,646/- involving central excise duty of Rs.1,03,247/- and education cess of Rs.2,024/- were destroyed. 2.2 Duty on such destroyed goods by natural cause which was payable could have been remitted under Rule 21 of Central Excise Rules, 2002. However, no such order of remission has been produced by the appellant. Accordingly a show cause notice dated 13.06.2007 was issued to the appellant asking them to show cause as to why:- (1) the Central Excise duty amounting to Rs.103247/- (Rs.1,01,223/- Basic and Rs.2,024/-E.Cess) on the finished goods destroyed in fire, should not be recovered from them under Section 11A of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed in the factory on 09.06.2006. The appellant have not claimed the remission of duty on the goods destroyed in fire as provided under Rule 21 of Central Excise Rules, 2002. In this case, in absence of valid remission claim and appropriate approval of the same by the proper officer, the Central Excise duty in respect of goods claimed as destroyed in fire becomes payable and recoverable under Rule 4 read with Rule 8 of Central Excise Rules, 2002. 05. It is also noticed that appellant have applied for remission of duty payable on the goods destroyed under Rule 21 of Central Excise Rules, 2002 and subsequently the remission application filed before the Commissioner in connection with fire incidence occurred in the factory on 09.06.2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r res integra. In the case of Voltamp Transformers Ltd. [2010 (262) ELT 909 (Tri.-Ahmd.)] following has been held:- 4. I have considered the submissions made by both sides. In view of the decision of the Tribunal, dated 14-10-86 in case of Shri Dudhganga-Vedganga SSKL Others cited by the learned advocate, the demand for duty or liability of duty arises only on removal and in absence of any contrary decision cited before me, judicial discipline requires me to follow this decision. Therefore, contention of the learned advocate that there was no requirement of application for remission in this case and the reply to the show cause notice is sufficient for claiming the remission if the appellant is otherwise liable for remission as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contention that whether the insurance company reimburses the claim for duty element or not, is not relevant. In the absence of any contrary decision, this issue is covered by the decisions of the Tribunal made earlier. As regards decision of the Tribunal cited by the learned SDR, in that case, the appellant had received the amount relating to excise duty from the insurance company unlike in this case and also other three decisions cited by the learned advocate were not brought to the notice of the Tribunal in that case. Further, as regards department s appeal, the ground is that the department had filed an appeal against the decision of the Tribunal in Biopac case cited. Till the same is set aside or stayed, this decision has to be accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of goods due to floods is established with available documentary evidences of insurance report and intimation given by party. Respondent has again offered that said goods can still be inspected by department in their factory. 9. The loss of goods due to floods is by natural causes or by unavoidable accident and the damage of goods are claimed to be unfit for marketing and their remission of duty involved on such goods is to be considered under Rule 21 of Central Excise Rules, 2002. Hon ble Tribunal in the case of Mira Chemicals v. CCE, Surat-II - 2009 (234) E.L.T. 328 (Tri.-Ahd.) has held that filing of remission application is only a procedure required to be adopted by assessee and in the absence of any clearance of goods from fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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