Dr. D.M. Misra, J.
1. This is an Appeal filed against Order-in-Appeal No.09/Kol-VII/2011 dated 27.01.2011 passed by the Commissioner of Central Excise(Appeal-I), Kolkata.
2. Briefly stated the facts of the case are that the goods were damaged/lost due to a fire broke out in the Appellants godown No.LS-3 on 18.12.2006 for which the Appellant had requested for remission of duty involved on such goods under the relevant Rules. The said remission application was rejected by the department on 16.03.2009. Consequently the demand notice has been issued proposing recovery of duty on the lost/destroyed goods in fire.
3. On the commencement of the proceeding the Ld.A.R. for the Revenue Shri S.Chakraborty raised a preliminary objection submitting that since this is a case of loss of goods, during storage in the factory, therefore, this Tribunal has no jurisdiction to entertain the Appeal against the order of the Ld.Commissioner(Appeals) by virtue of Section 35B of Central Excise Act, 1944. In support he has referred to the Larger Bench judgements of this Tribunal in the case of Supercoats Industries vs. Commissioner of Central Excise, Thane-II 2005 (183) ELT 255 (Tri.-LB) and Commissioner of Central Excise, Jamshedpur vs. TISCO Ltd. 2008 (227) ELT 203 (Tri.-LB).
4. Shri N.K. Chowdhury, Ld.Advocate for the Appellant on the other hand submits that this Tribunal has jurisdiction to decide the Appeal since the goods were destroyed in fire and there is a distinction between loss and destruction. In support, he has referred to the judgment of this Tribunal in the case of Glenmark Generies Ltd. vs. Commissioner of Central Excise, Pune 2009 (248) ELT 345 (Tri.-Mumbai) and Saturn Non-Woven Ltd. vs. Commissioner of Customs and Central Excise, Surat 2003 (160) ELT 941 (Tri.-Mumbai).
5. In his rejoinder the Ld.A.R. for the Revenue submits that the issue of destruction or loss has been initially considered in the case of Shiva Essential Oils and Chemicals vs. Commissioner of Central Excise, Noida 2004 (168) ELT 121 (Tri.-Del.) and in view of conflicting view it resulted into a reference to the Larger Bench. In Supercoats Industriess case, the Larger Bench after taking a specific note of the said judgment has over-ruled it referring to the ratio of the Madras High Court in the case of India Pistons Ltd. vs. ACCE 1987 (27) ELT 651(Mad.). It is the submission that the judgment of the Larger Bench is binding.
6. Heard both sides and perused the record. I have carefully considered the above submissions advanced by both sides. Undisputedly the present Appeal is arising out of the order passed by the Ld. Commissioner(Appeals). It is also not in dispute that the present Appeal relates to loss/destruction of goods on account of a fire occurred in the factory of the Appellant way back in 2006. The Revenue disputes about the jurisdiction of this Tribunal to entertain the Appeal at this stage placing reliance on the larger Bench decision in Supercoats Industries case. For ready reference the observation made by the Larger Bench of the Tribunal is reproduced below:-
7. We observe that the Tribunal in the case of Shiva Essential Oils and Chemicals v. CCE, Noida cited supra, has not considered the decision in Lakshmiji Sugar Mills Co.Ltds case nor was it cited before them. Loss, whether it occurs due to unavoidable accident or otherwise, is a loss. So long as such loss occurs in storage, it is a loss referred to in Section 35B proviso. The artificial distinction between one type of loss and another sought to be made in Shiva Essential Oils and Chemical case does not appear to be correct in view of the unambiguous language of Section 35B. We are of the opinion that the Tribunal has no jurisdiction to hear appeals arising out of the orders of Commissioner (Appeals) where the appeals relate to loss of goods either in transit or in storage as stated in proviso (a) to Section 35B of the Central Excise Act.
8. On going through the facts of the Shiva Essential Oils and Chemicals case(supra) I find that the facts involved in the said case relates to destruction of goods during storage in the factory on account fire. The Ld.Advocate for the Appellant heavily relied upon the judgment in the case of Glenmark Generies Ltd. in making a submission that if the goods have destroyed due to fire the same cannot be considered as loss of goods. I do not find force in the submission of the Ld. Advocate in view of the specific ruling of the Larger Bench in Supercoats Industries case which has been subsequently followed by another Larger Bench in Commissioner of Central Excise, Jamshedpur vs. TISCO Ltd.s case. I am of the view that this Tribunal has no jurisdiction for entertaining Appeals arising out of the Ld. Commissioner(Appeals)s order relating to loss/destruction of goods in fire. However, the Appellant are at liberty to approach the appropriate forum for redressal of their grievance. Appeal is dismissed.