ORDER
P.G. Chacko, Member (J)
1. There was a fire accident in the appellant’s factory in the night of 8th and 9th of June, 1996 in which allegedly 833 Qtls. of sugar were totally damaged. The appellants applied to the jurisdictional Commissioner of Central Excise for remission of duty on that quantity of sugar. The original proceedings taken by the Commissioner on the remission application were challenged before this Tribunal and this Bench set aside the proceedings which were found to be in violation of the mandatory provisions of Rule 49 of the Central Excise Rules, 1944. The matter accordingly stood remanded to the Commissioner. Pursuant to the remand order, the Commissioner passed order dated 15-5-2002 after considering the available records and the submissions made by the party at the time of personal hearing. The remission application of the party was rejected as per the said order of the Commissioner. Hence, the present appeal.
2. The adjudicating authority rejected the claim for remission of duty on the following grounds :-
(a) The accident was not intimated by the claimant to the Central Excise authorities within 24 hrs., as required under Trade Notice No. 206/84, dated 1-12-84. (b) The claimant did not take the necessary care and precautions for avoiding the accident. (c) The claimant had obtained a compensation of Rs. 9,69,794/- from the Insurance Company in respect of the loss which had resulted from the fire accident and the said amount included the duty of excise also. 3. Heard both sides.
4. Ld. counsel for the appellants reiterates the grounds of this appeal and submits that the issue involved in this case stands squarely covered in favour of the appellants by a decision of this Tribunal. In this connection, he cites the Tribunal’s decision in Sarada Ply Wood Industries Ltd. v. CCE, Shillong [1987 (32) E.L.T. 116]. Counsel further submits that, even otherwise, the impugned order cannot be sustained inasmuch as the grounds of the order are factually untenable. The accident was intimated, in fact, to the Supdt. of Central Excise at 10.00 AM on 10-6-96 as 9-6-96 was a Sunday (a holiday for the Central Excise offices). If the holiday is excluded, the requirement of the Trade Notice stands fulfilled in this case. Referring to the compensation granted from the Insurance Company, ld. counsel submits that no amount of duty has been reimbursed by the Insurance Company. It was only the cost of damaged sugar that was paid by the Company. In this connection, counsel relies on a certificate dated 21-10-2002 issued by the Insurance Company, which says that the question of payment of excise duty to the claimant did not arise as the fire policy did not cover reimbursement of such duty. Referring to the Commissioner’s observations as to precautions which should have been taken to avert the accident, counsel submits that it was not within the scope of proceedings of the Commissioner to enquire into such things while examining a claim for remission of duty. Counsel seeks to draw support to this plea from the Tribunal’s decision in Ganeshwar Ltd. v. CCE, Allahabad [2002 (141) E.L.T. 654].
5. Ld. DR endeavours to justify the impugned order. He submits, that the Trade Notice prescribed a procedure for filing such remission applications as the one in question and, accordingly, the claimant should have reported the accident strictly within 24 hrs. In this connection, he denies the counsel’s claim that there was nobody in the Central Excise office on 9-6-96 (Sunday) to receive the application. The DR would insist that some Inspector would be available in the office on Sunday also. However, ld. DR has not been able to satisfactorily answer a query put from the Bench as to whether there was any Trade Notice or other circular prescribing such things. Ld. DR also would vehemently defend the observation contained in the impugned order to the effect that the amount paid by the Insurance Company included excise duty as well.
6. Having examined the record and the submissions, I find that the short issue involved in this case could be decided upon in the light of this Tribunal’s decision in Sarada Ply Wood (supra). No better judicial authority has been cited by ld. DR. In the cited case, it was held that as the goods in question were destroyed due to fire within licensed premises and the manufacturer duly intimated it to the Central Excise officers and the loss was duly evaluated, there was no question of demanding any duty. More important, it was also held that no duty was demandable irrespective of what the insurance company had done or had not done. The only argument which could have been raised by the DR to oppose the applicability of this decision…………. an argument which was actually not raised……….is that the above decision would be applicable only in a case where the accident was duly intimated to the department. In the instant case, it is not in dispute that the accident took place in the night of 8th and 9th of June, 1996, that the 9th of June, 1996 was a Sunday and that the incident was reported to the Central Excise authorities on 10th of June, 1996 at 10 AM. No evidence is available on record to show that on Sunday there was any duly authorised officer in the Central Excise office to receive the remission application. The provisions of the Trade Notice have to be construed in keeping with the reality that, on Sundays, the Central Excise Offices do not work. The General Clauses Act permits exclusion of the holiday from the period in a computation of the period as prescribed under the Trade Notice. Construed in this manner, the intimation given by the party at 10 AM on the 10th of June, 1996 to the Central Excise authorities is well within the time frame prescribed by the department. The issue involved in this case, squarely, stands covered by the decision of the Tribunal in Sarada Ply Wood (supra). In that case also there was a certificate, on record, of the Insurance Company indicating that the element of excise duty had not been taken into account by them while disbursing compensation to the claimant. In the instant case, as already noted, ld. counsel has brought on record a similar certificate from the Insurance Company the authenticity of which is not doubted. It has been held by this Bench in Ganeshwar Ltd. (supra) that considerations as to reasonable steps that could have been taken, to avoid fire accident are irrelevant in the context of examining a remission application under Rule 49 of the Central Excise Rules, 1944. I would go a step further to hold that, once the incident reported to the authorities is accepted as an accident, considerations as to whether reasonable care was taken to avoid it are totally irrelevant.
7. To be fair to the Commissioner, it should be noted that neither the Insurance Company’s certificate nor the case law cited today was before him when he adjudicated the matter. Nevertheless, having found the present issue as squarely covered by a decision of this Tribunal (2-Member Bench), I am inclined to follow that decision and dispose of the appeal finally rather than remand it to the lower appellate authority. Accordingly, the impugned order is set aside and the appeal is allowed.
8. At this stage, it is submitted by ld. counsel that a show-cause notice issued on 5-12-96 demanding duty on the same quantity of sugar is still pending adjudication. The Commissioner shall take up that notice for adjudication in accordance with law and natural justice as expeditiously as possible and take a decision in the light of the present order.