COMMISSIONER OF CENTRAL EXCISE Vs. GANGESHWAR LTD.

JUDGEMENT

(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:-

(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:

(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.