Archana Wadhawa, J.
1. Both appeals are being disposed of by common order as they arise out of same set of facts and circumstances.
2. Appeal No.E/51/2006 relates to the appellants claim of remission of duty in respect of final product which were destroyed in the fire. As the said remission application stands rejected by the Commissioner, consequent demand of duty stands confirmed in respect of second appeal No.E/2171/2006.
3. The appellants are engaged in the manufacture of ceramic items. A fire broke in their factory on 1.4.2003 between 22.00 to 23.00 hours. The fire brigade was intimated about the fire at 23.45 hours and on the second day itself i.e. on 2.4.2003. Intimation was given to the appellants jurisdictional central Excise authority. As a result, appellants range officer visited their factory premises on the same day i.e. on 2.4.2003 and found that fire had taken place and goods converted into ashes. Appellant tried to control the fire by pouring water and also called fire brigade. FIR was also lodge on the police station.
4. In the above backdrop, the appellant filed application dated 18.2.2004 for remission of duty involved in the destroyed goods. Such remission application was rejected by the Commissioner by observing that the appellant had not installed fire fighting/fire extinguishing equipments; that the report of fire brigade office shows that the time of information about fire was at 2345 hours whereas the appellant in their intimation letter dated 2.4.2003 reported the time to be between 2200 hours to 2300 hours. The insurance claim filed by the appellant with the New India Assurance Co.Ltd. was rejected being fraudulent and untenable vide order dated 30.7.2004.
5. The appellants contention is that fire fighting equipments were installed in their factory which is clear from the insurance report dated 17.11.2003. As regards timing of fire, learned Advocate submits that apart from the fact that fire brigade was informed around 2345 hours whereas fire broke between 2200 and 2300 hours. As such there is no mis-statement, the difference in the timing of fire will not be much relevance on the face of factual position that fire actually took place and the goods were destroyed. As regard the Commissioners finding in denial of remission, he submits that the matter travelled up before National Consumer Forum, who vide their order dated 26.5.2008 directed the insurance company to pay claim of Rs.1.40 crores to the appellant.
6. After hearing learned DR, I find that whatever objections were raised by the Commissioner for denial of remission, stands duly met by the appellant. There is no dispute about the fact of fire as also about the fact of destruction of the goods. In fact the appellant has been prompt to call fire brigade immediately, inspite of taking first measured in trying to extinguish fire by way of fire extinguisher and pouring water etc. Further intimation about fire accident and loss of goods stands made by the appellant on the very next day itself. The extent of damage of goods also stands verified by Superintendent. In the wake of above admitted factual position, denial of remission of duty on mere technical ground i.e. being some difference in the occurrence of fire timing and in calling fire brigade are of no relevance. Further, I find that the appellants claim from insurance company stands settled in their favour, by National Consumer Forum.
7. However, I find that learned Advocate has not been able to show claim made in the insurance company was inclusive or exclusive of duty. For this purpose, he makes prayer for remand of the matter to the original adjudicating authority.
8. In view of above, I find that the appellants are entitled to remission of duty subject to the condition that the duty element has not been claimed from the insurance company. Consequently, in second appeal confirmation of demand of duty would be decided accordingly by the Commissioner in remand proceeding.
9. Both the appeals are disposed of in the above manner.