Full Judgment
2. When the case was called none appeared on behalf of the respondent.
The notice issued to the respondent was received back undelivered with the postal remarks that assessee is not available at the given address.
The notice was issued on the address, which was known, to the Revenue on which the respondent received the adjudication order. Therefore, the appeal is being taken up in the absence of respondent.
3. In this case the respondents are engaged in the manufacture of Tin Containers and they were availing the benefit of Modvat credit in respect of the duty paid Tin plates used in the manufacture of their final product. The 23.524 MT inputs were stolen from their factory. The Revenue issued a show cause notice for reversal of the credit in respect of the inputs, which were stolen. The adjudicating authority confirmed the demand by denying the credit and also imposing the penalty of Rs. 20,000/-. On appeal filed by the appellant the Commissioner (Appeals) allowed the appeal after taking into consideration the decision of the Tribunal in the case of Ram Printing Mills v. Collector of Central Excise, Chandigarh, 4. The contention of the Revenue is that, as the inputs were not used for the manufacture of final product; therefore, the respondents are not entitled for the credit. The contention is that the fact of the case which is relied upon by the Commissioner (Appeals) is different from the facts of the present case. In the case of Ram Printing Mills v. Collector of Central Excise, Chandigarh (supra) fabrics were stolen from the factory, which was the final product of the manufacturer. In that case the Tribunal allowed the remission of duty in respect of the final product. The Revenue relied upon the decision of the Hon'ble Madras High Court in the case of Golden Hills Estates v. Collector of Central Excise, Madras, of the Revenue is that in this case Hon'ble High Court held that loss of by way of theft duty paid goods is neither an 'accident' nor is it 'unavoidable' as the owner should have taken proper steps to protect the goods and rejected the request for remission of duty. The Revenue also relied upon the decision of the Tribunal in the case Asian Paints (I) Ltd. v. Commissioner of Central Excise, Mumbai-II, to submit that the inputs which are lost in fire before these were issued for manufacture of final product to manufacturer as to reverse the credit.
5. I find that in this case the Commissioner (Appeals) relied upon the decision of the Tribunal in the case of Ram Printing Mills v. C.C.E., Chandigarh (supra). In that case the man-made fabrics manufactured or processed by the manufacturer were stolen. In this situation, the remission was allowed. The facts of the present case are different. In this case the inputs on which credit was taken before use in the manufacture of final product was stolen and Hon'ble High Court of Madras in the case of Golden Hills Estates v. Collector of Central Excise, Madras (supra) held that theft is neither an accident.
Therefore remission in respect of the goods stolen is not available.
Further, I find that the Tribunal in the case of Asian Paints (I) Ltd. v. C.C.E., Mumbai-II (supra) held that the on which credit has been taken inputs, which are destroyed in fire, the assessee has to reverse the credit as these are not used in the manufacture of final products.
6. In view of the above discussion, the impugned order is set aside and the order passed by the adjudication is restored and the appeal is allowed.