ORDER
M.V. Ravindran, Member (J)
1. This appeal is directed against the Order-in-Appeal No. VGN(30)381/TF/ 1998/8678 dated 18.10.2000.
2. The relevant facts that arise for consideration are that there was a fire accident in the factory of the appellant on 16.3.1997 and on 17.5.1997. In the fire accident, the raw materials and finished goods were destroyed. The appellant filed remission application for finished goods, which were destroyed in the factory due to fire accident, through letter dated 15.6.1998. A show cause notice dated 22.7.1999 was issued to the appellant for rejection of the remission claim on the ground that the intimation of the fire was given by the appellant to the authorities belatedly. The Commissioner of Central Excise & Customs, Aurangabad vide his order dated 18.10.2000 rejected the remission application filed by the appellant. Hence, this appeal.
3. Learned Advocate appearing on behalf of the appellant submits that the intimation of fire accident that took place on 16.3.1997 was given vide letter dated 17.3.1997, which was received by the authorities on 18.3.1997. As regards the fire accident that took place on 17.5.1997, intimation was given on 19.5.1997. She submits that both the dates are recorded in the show cause notice. It is her submission that the fire accident, which took place on 16.3.97 was Sunday and hence, by that time it was afternoon and due to holiday on 16.3.1997, the appellant informed the Central Excise authorities on 17.3.1997, however, they informed to the Police Officer, Paithan about fire accident and Sub Inspector of Police Dept. visited their factory and conducted the enquiries in the presence of panchas. It is the submission that the Police Officer recorded that the fire was due to short circuit in the factory the fire broke out and the goods have been destroyed. She submits that office of the Superintendent of Central Excise is located at the distance of 45 kms, hence, they could submit the intimation letter dated 17.3.97 on 18.3.97 at 11.00 hrs. As regards the fire took place on 17.5.97, it is her submission that 17.5.97 was Saturday and holiday for the Revenue on 17.5.97 and 18.5.97 being Saturday and Sunday respectively, hence they could inform the department on next working day on 19.5.97 at 10.30 hrs.
4. On the merits, it is her submission that there is no dispute that the finished goods were destroyed. She submits that time frame of 24 hours as relied upon by the adjudicating authority as well as by the Commissioner (Appeals) in their order as per provisions of Rule 49 of the Central Excise Rules, 1944 has not been fulfilled, is not correct. She relies upon the Division Bench decisions of the Tribunal in the case of Jindal Polyester v. CCE, New Delhi as reported at and Plastikos Packaging v. CCE, Allahabad reported at . It is also her submission that Commissioner (Appeals) has wrongly mentioned that the remission application has been filed for raw material. It is her submission that they never claimed remission for the duty on raw material before the Commissioner (Appeals).
5. The learned JDR on the other hand submits that there is preliminary objection on the part of maintainability of this appeal. It is his submission that order of rejection of remission claim filed by the appellant is not an order passed by the adjudicating authority. He relies on the provision of Section 2(a) and Section 33 of the Central Excise Act, 1944 for this proposition. On merits it is his submission that the Commissioner (Appeals) has correctly rejected the remission application as the appellants have not filed the intimation of fire within 24 hours, which prevented the Revenue’s authority from verifying the fact and ascertain the extent, magnitude of loss. It is his submission that the appellant has failed to inform to the authorities within the prescribed time frame.
6. Considered the submissions made by both sides and perused the records. As regards the preliminary objection raised by the learned JDR, I find that the provision of Section 2(a) reads as under:
Adjudicating authority”, means any authority competent to pass any order or decision under this Act, but does not include the central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), [Commissioner of Central Excise (Appeals)] or Appellate Tribunal.
It can be noted from the above reproduced provision that the “adjudicating authority” means any authority competent to pass any order under this Act. In the case before me, the Commissioner while passing that order of rejecting the remission application has very clearly mentioned that this is an order, which can be appealed under Section 35B, if felt aggrieved. It is also seen from the said order that the Commissioner has mentioned as under:
If aggrieved, assessee may prefer an appeal under Section 35B of Central Excise Act, 1944.
This would indicate that the order, which has been passed by the Commissioner while rejecting the remission claim, is passed by the adjudicating authority. Further, to my mind, any order or decision, due to which the assessee’s right and liability is affected, is to be considered as an order and decision passed under provision of Section 2(a) and cannot be disputed at this point. As such, the preliminary objection raised by the learned JDR is not sustainable and the appeal is maintainable before the Tribunal.
7. On the question of merits of the case, it is seen from the record that the appellant had intimated the authorities about the fire accidents, which took place on 16.3.97 and 17.5.97. Since those two days were holidays and it was obviously not possible to send information within 24 hours. It is also on record that appellant had informed the local authorities i.e. Police authorities and Fire Brigade immediately after fire accident. The Commissioner’s order rejecting the remission claim only on the ground that accident was not intimated within prescribed limit of 24 hours, to my mind seems to be incorrect proposition of law. Plain reading of Rule 49 and provision of Section 147 do not indicate that the appellant is required to intimate the incidence of fire within 24 hours of the incidence. Ld. JDR contended that there are executive instructions, which state that information about incidence should be made within 24 hours. To my mind, it would be a contrary instruction. It is settled law that provisions of law cannot be limited by executive instructions. It is also seen from the record that the intimation filed by the appellant is received by the Revenue. It is also surprising to note that, having got intimation of fire accident officials did not visit the premises on the same date. The authorities could have called for information from police or fire brigade about the accidents. Having not done so, the Commissioner’s order of rejecting the remission claim for not filing the information within 24 hours seems to be incorrect and not sustainable.
8. As regards the submission of the ld. JDR that the appellant did not apply for condonation of delay for late submission, I find that this proposition of law is totally unsustainable for the reason that the assessee was under tremendous pressure due to loss of properties. The finding of the Commissioner that fire took place on 17.5.1997, intimation was delayed even to police, is on wrong footing. If the Police officer found it fit to come on 18.5.97 for verification, cannot be held against the appellant.
9. As regards third ground taken by the Commissioner that the appellant had not taken precautionary measures for safety of the goods, in spite of the fact that the goods in question are prone for catching fire, I find that C.F.O. of the Fire Brigade has clearly indicated in his certificate that the fire was doused by Fire Brigade at the factory that was equipped with fire fighting system. It indicates that the appellant had taken precautionary measures to face such kind of incidences.
10. I find strong force in the contention of the learned Counsel that the issue is squarely covered by the Division Bench decision of the Tribunal in the case of Jindal Polyester (supra).
Accordingly, I find that on merits as well as on the law points, the impugned order of the Commissioner (Appeals) is not sustainable. As such, the impugned order is set aside and the appeal is allowed with consequential relief, if any.
(Dictated and pronounced in Court)