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TMI Blog2024 (10) TMI 909X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that their claim for CVD and ED was disallowed and the claim for the damage for material alone was accepted - Merely stating that the appellant claimed insurance including the taxes paid on goods with an intention to get double benefit, will not suffice. Revenue should have proved their case with documentary proof, which could easily have been collected. However, with the survey report stating to the contrary, this charge of revenue is rejected. A Coordinate Bench of this Tribunal in NATIONAL ORGANIC CHEMICAL INDUS. LTD. VERSUS CC., (IMPORT), MUMBAI [ 1999 (5) TMI 388 - CEGAT, MUMBAI] held that the benefit of the Notification concerned, could not be denied in respect of goods which were intended for use for manufacture of the final product but could not be so used due to shortage or leakage. The demand cannot sustain, and the question of imposing fine and penalty does not arise. The impugned orders are set aside - Appeal allowed. - SHRI P. DINESHA, MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Ms. A.S.K. Swetha, Advocate for the Appellant Ms. O.M. Reena, Authorized Representative for the Respondent ORDER This appeal is filed against Order in Appeal No. 96/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required under Rule 21 of Central Excise Rules, 2002 under Section 23 of Customs Act, 1962. At the time of personal hearing, they had produced these correspondences before the Hon'ble Commissioner (Appeals) but the impugned order has neither discussed these evidences nor disputed the receipt of intimation to the department. The fire accident which occurred in the factory led to the destruction of imported waste paper of 333.482 Mts. which was stored in the factory, with the intention of being used in the manufacture of Kraft paper. These waste materials were imported by availing the benefit of Notification No 21/2002 Cus. The wording used in the said notification under Sr. No 152 stated, if imported for use in manufacture of paper or paper board . She stated that the phrase for use in manufacture , means intended to be used only, because if the intention of the legislature was different then the wording would have been like should be used in the manufacture . Accordingly, it would not be correct to say that the appellants have failed to fulfill the condition of the end use based Notification. In this context the Ld. Counsel placed reliance on following Supreme Court citation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner, as the case may be, within six months or such extended period, as that Deputy Commissioner or Assistant Commissioner may allow, a certificate issued by the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, in whose jurisdiction the said goods have been used in such unit, that the said goods have been so used. 5. The issues raised in the proceedings below are that the appellant; i) did not intimate the department regarding the loss of the impugned goods due to fire, and; ii) claimed insurance including the taxes paid on goods with an intention to get double benefit with an intention to evade payment of duty. The Commissioner Appeals also felt these actions; iii) proved that the impugned goods were not used in the manufacture of the kraft paper, violating the conditions of the undertaking given. 6. We find that as per the correspondence placed before us and not refuted by revenue, the appellant had intimated the department of the loss of the impugned goods both by email and by letter. In fact the charge by revenue that the appellant claimed insurance for the goods destroyed by fire shows that the fire accident and loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. A Coordinate Bench of this Tribunal in National Organic Chemical Indus. Ltd. v. Collector of Customs (Import), Mumbai, [2000 (126) E.L.T. 1072] held that the benefit of the Notification concerned, could not be denied in respect of goods which were intended for use for manufacture of the final product but could not be so used due to shortage or leakage. The appeal preferred by the Department from the decision of the Tribunal was dismissed by the Apex Court - Commissioner of Customs Vs M/s. National Organic Chemical Indus. Ltd. [C.A. No. 6764/99, dated: 20/02/2002]. The situation caused by a loss due to fire is similar to the situation where the input could not be used due to shortage or leakage. Rule 21 of the Central Excise Rules covers goods that have been lost or destroyed by unavoidable accident at any time before removal and provides for remission of the duty payable on such goods. Similarly, Section 23 of the Customs Act 1962, provides specifically for remission of duty on lost, destroyed or abandoned goods. Destruction by fire is one such unavoidable accident. A legal position that inputs which are destroyed etc. were not used in the manufacture of the final product and he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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