- (1.) Heard Sri Siddharth Shukla, learned counsel for applicant-department and Sri Piyush Agarwal, learned counsel appearing for respondent-firm. The following two questions of law have been referred for consideration:- (i) Whether under the facts and circumstances of the case, the impugned order of the Tribunal dated 20-2-2002 suffers from manifest error of facts and law in allowing to the opposite party the benefit of the provisions of Rule 49(1A) for damage of 19577 qtls. of V.P. Sugar, and that too without recording any finding to the effect that the sugar in question was shown to the satisfaction of the proper officer to have been destroyed by unavoidable accident? (ii) Whether the onus to place sufficient evidence and prove that the goods lost or destroyed by natural causes or by unavoidable accident rest on the appellants seeking remission of duty and such onus cannot be shifted on the proper officer/department to prove otherwise?
(2.) Assessee claimed benefit under proviso to Rule 49(1) of Central Excise Rules, 1944 (hereinafter referred to as 'Rules, 1944') in respect to loss of certain excisable goods, stating that it was on account of unavoidable accident and therefore, he is not liable to penalty. Excise authorities up to Commissioner decided the matter against him, relying on the report of Chief Fire Officer that accident could be due to careless smoking of Biris and Cigarettes used by workmen of assessee industrial undertaking. However, Tribunal has taken otherwise view while allowing assessee's appeal observing that report of Chief Fire Officer was only an opinion based on no evidence whatsoever and department could not prove as to what precaution or steps were taken by assessee to avoid fire accident in the factory. The relevant extract of the findings of Tribunal is as under: "As rightly contended, the averment of the Chief Fire Officer that the fire accident could be due to careless smoking of biris and cigarettes is only a matter of opinion and this is not based on either on account of any evidence or as a result of an enquiry conducted by him in the matter. The Commissioner in his order has observed that the party has not taken reasonable steps to ensure fire preventive measures but has not recorded any finding as to what reasonable steps could have been taken against the fire accident which is caused by the careless smoking of biris and cigarettes by any individual or workers in a sugar factory."
(3.) Tribunal in our view has wholly misdirected itself and erred in law in recording aforesaid reasons for allowing appeal of assessee and setting aside penalty.;