ORDER
P.C. Jain, Member (T)
1. Controversy arising in this appeal as set out in the impugned order is as follows :-
“The appellants had been obtaining H.P.S./Furnace Oil under Chapter X procedure for use in the manufacture of fertilizers. Since the appellants had failed to account for certain quantity of H.P.S./Furnace Oil despatched to them under the provisions of Chapter X procedure, demand was raised against them holding that the appellants had failed to establish that remission of duty was warranted in respect of the unaccounted consignment, since they had not proved beyond doubt that the goods had been destroyed by unavoidable accident. Before the adjudicating officer, the appellants had taken the plea that the wagons containing the excisable goods had been lost in transit. The appellants have submitted that when the goods were lost being under the control of the Railway authorities, no duty could be recovered from them. It has been submitted that the Assistant Collector had erred in equating the words ‘lost’ and ‘destroyed’ used in Rule 196. He had failed to appreciate that because of the use of the word ‘or’ in between, if the goods were lost, even though not destroyed, remission of duty provided under Rule 196 could be attracted in the appellants’ case. According to them, the meaning of the expression ‘by unavoidable accident’ is not limited to accident in the physical sense like fire accident, railway accident etc. The word ‘accident’ should be interpreted liberally even to include cases of theft etc.”
2. The lower appellate authority has not accepted the contention of the appellants on the ground that misplacement of wagon under the control of Railway authorities is not the same thing as a case of theft of goods under the control of the custodian of the goods. In this view, the learned lower appellate authority has held that the goods in the instant case could not be said to have been lost on account of an unavoidable accident. The Case Law relied upon by the appellants before the lower Appellate authority namely CEGAT’s decision in the case of Mahindra & Mahindra Ltd. 1983 (13) ELT 974 (CEGAT) has been distinguished on the ground that the present case is not one of theft as was the matter before the Tribunal in the case of Mahindra & Mahindra Ltd.
3. Learned advocate for the appellants has now urged that the principle approved by the Tribunal giving an extended meaning to the expression ‘lost’ by including therein the meaning attached to the word ‘theft’ should be extended to include such a case as well as is available in the instant case i.e. where the tank wagons are misplaced and the appellants have been deprived of the goods for no fault of theirs. So far as the consignee namely the appellants are concerned, goods are deemed to be lost and the case of loss is beyond their control. the expression “lost or destroyed … by unavoidable accident during transport” occurring in Rule 196, according to the learned advocate, will cover the cases of loss despite reasonable care by the consignee. Misplacement of wagon causes loss to the consignee on account of all reasonable care taken by the consignee. Even if it is held that the reasonable care is required to be taken by the transporter of the goods to avoid loss of goods during transport, it is to be assumed that the Railway authorities being a Public Sector undertaking must be taking all due care against the misplacement of such wagons and therefore, it must be held that due care was taken by the Railways as well and despite that due care, loss of goods has taken place which warrants remission of duty in terms of Rule 196. The word ‘accident’ occurring in the expression ‘unavoidable accident’ means any unforeseen occurrence and certainly it cannot be stated by any person that misplacement of a wagon is foreseen. The learned advocate has, therefore, stressed that the claim of the appellants is genuine and the appeal deserves, therefore, to be all-owed.
4. Learned SDR on the other hand has reiterated the findings of the lower Appellate authority. I have carefully considered the pleas advanced from both sides. I am unable to accept the pleas of the appellants. Misplacement of a wagon cannot be treated as loss due to unavoidable accident.
5. It is a frequent happening that misplaced wagons are restored to the rightful claimant when such a wagon is traced out by the Railway authorities. Rule 196 envisages remission of duty if the goods are lost by an unavoidable accident during transport of the goods. It, therefore, implies that reasonable care should be taken by the transporter to prevent loss by unavoidable accident. Consignee is not the custodian of the goods during transport. It is difficult to accept that ‘misplacement of wagon’ is an accident and that too unavoidable. If proper care and control over the movement of wagons is kept, misplacement of a wagon can be avoided. The term ‘misplacement’ itself implies that something has been wrongly placed and not readily traceable. Goods remain, however, within the custody of the transporter i.e. Railway authorities. It is also beyond comprehension that an entire wagon – lock, stock and barrel – would be stolen away. All the rail tracks in the country are practically within the control of the Railway authorities. There is no possibility therefore, of whisking away a railway wagon. Ratio of the judgment relied upon by the learned advocate would not apply to the facts of this case.
6. It was also understood during the course of hearing if the goods were not given to a consignee within a reasonable time, the consignee could lodge a claim against the Railway authorities and such claims were accepted by that authority. Lateron, if the goods were traced, the authorities disposed of those goods. In these circumstances, it would not be correct to remit duty on excisable goods which are not readily traceable on account of misplacement of wagons. It appears more appropriate that the parties should pursue their claims including excise duty with the Railway authorities who are responsible for depriving the parties of their goods.
7. In view of the foregoing discussion, the appeal is rejected.