1999 (2) TMI 589

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....sp;     Arguing on the application Shri K.K. Bhattacharjee, Ld. Consultant submitted that the applicants' factory was closed for manufacturing operations during the period 12-8-1989 to 5-3-1990 under intimation to their jurisdictional Central Excise authorities. On opening of their factory, they found that Caffein-IP, their final product was short by 60 packets containing 1200 KGs which according to them was stolen from their non-duty paid store room. On noticing the theft of the above material they lodged an FIR with the police. The police conducted the verifications and as per their report "no clue of the culprit and stolen caffein also could find-out but the case found to be true under Section 380 IPC, during investig....

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.... the absence of the appeal by the Revenue against the Commissioner (Appeals)'s Order. A categorical finding has been given by the Commissioner (Appeals) that it was case of theft. It was only for jurisdictional reasons that the matter was remanded to the Commissioner for de novo adjudication. He also argued that the Commissioner is also not doubting the theft in their clear terms, but has rejected their prayer for condonation on the ground that their factory was well-protected and guarded and it was their responsibility to avoid any pilferage or theft from their godown. He submitted that the Tribunal in the two judgments referred to in the Commissioner (Appeals)'s Order has held that unavoidable accident includes thefts. 3.  &n....

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....leum Ltd. has only considered the Delhi High Court's judgment in the case of M/s. Sialcoat Industrial Corpn. - 1979 (4) E.L.T. (J 329) (Del.). He draws my attention to the Calcutta High Court's judgment (para 13) wherein they have observed that "the word 'accident' has been appropriately held by the Board, in their determination dated 28-11-1972 in Annexure F, to conclude 'theft' and furthermore in my view the word 'lost' as mentioned in the said rule, also include 'theft'." He submits as per the larger Bench decision of the Tribunal in the case of C.C.E., Chandigarh v. Kashmir Products - 1997 (96) E.L.T. 257 (Tribunal), law declared by the High Court in the State is binding on the Tribunal under its superintendence. As West [(sic) East] Re....

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.... Order dated 27-12-1990 gave the finding that the "goods have been removed by the thefts, and such a finding was confirmed by the Commissioner (Appeals) but the matter was remanded, the Assistant Commissioner passing subsequent Order in de novo proceedings could not have differed with the finding of his predecessor in the absence of any appeal by the department. I also note that there is a Police report to the effect that no clue of culprit and a stolen caffein could be found, but the case was found to be true under Section 380 of I.P.C. Such a report of the Police cannot be doubted by the department especially in view of the earlier findings of the Assistant Commissioner in his Order. There is no sufficient reason to doubt the case of thef....