ORDER
Archana Wadhwa, Member (J)
1. After hearing Shri O.K. Saha, Ld. Consultant and Shri A.K. Mondal, Ld. SDR, I find that the demand of duty of Rs. 15,000 (approx.) has been confirmed against the appellants on the ground of clandestine removal of their final product by observing that on the day of visit of the Central Excise Officers in the appellants’ factory, the final product was found short.
2. Shri Saha explains that the appellants’ factory is situated in Orissa and there was a cyclone and flood in the State of Orissa during the period October 1999. As a result, their factory was under water upto 5-6 ft. and was closed with effect from 29.10.99. On 9.11.99, they wrote to the jurisdictional Superintendent that because of the flood and cyclone in the belt of Orissa, there has been a considerable loss of raw materials and finished stock in their factory. They also intimated that they would open their factory only after things settled down and would intimate the Revenue accordingly. Their factory was visited by the Central Excise Officers on 27.11.99 who conducted the various checks and verifications and they found shortages were there. Shri Saha submits that though all the facts were placed before the visiting staff, they make out a case of clandestine removal against them. Thereafter, on 4.1.2000, they enclosed a list of materials damaged/lost due to super-cyclone and finally made an application with the Commissioner on 18.4.2000 praying for remission of duty on the damaged goods. Shri Saha submits that the said application is still pending with the Commissioner and he has not decided the same. The authorities below have gone only by this fact and has confirmed charge of clandestine removal against them.
3. Shri A.K. Mondal, Ld. SDK submits that the appellants have not explained the shortages conducted by the officers at the time of their visit and there is no demand of duty by the Commissioner. As such, the confirmation of demand of duty was in accordance with law.
4. I have considered the submissions made by both the sides. From the facts of the case, it is evident that there was damage/loss of final product as also the raw materials in the appellant’s factory situated in the State of Orissa which was visited by super-cyclone in October 1999. The appellants have been vigilent enough to intimate the Revenue about the closure of their factory and then about the loss of the materials. They had also moved an application to the Commissioner for remission of duty on the final product so lost, in the cirmcustances, the charges of clandestine removal cannot be sustained, especially, when there was no direct or indirect evidence on record to substantiate such charges. It is now well settled law that the charges of clandestine removal are required to be proved beyond doubt. I note that in the instant case, there is not even doubt of clandestine removal inasmuch as the appellants have themselves come forward to claim the remission about the loss of goods. In the circumstances, I find no justification in confirmation of demand of duty imposed upon the present appellants. Accordingly, I set aside the same and allow the appeal with consequential relief to the appellants.