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4. I have heard ld. counsel for the Appellant and ld. Authorised Representative for the Revenue and perused the records. The Learned Counsel for the Appellant submitted that since the accident was unusual and unexpected therefore they referred the matter to the Vasant Dada Sugar Institute to study the case to find out the cause of explosion and the technical team found that the accident occurred due to formation of carbon dioxide gas through the whole volume of molasses and the trapped carbon dioxide gas, due to hydro static pressure, caused the bursting of the tank at the welded portion. He further submitted that certain types of accidents are unavoidable even in spite of taking all precautions and that bursting of tank due to the formation of carbon dioxide gas and increase of hydro-static pressure is one of such types of accidents. He further submitted that no sugar manufacturer can avoid the formation of carbon dioxide gas and that when the formation of carbon dioxide gas is not avoidable, there is every possibility of increase in the hydro-static pressure inside the tank which may result in the bursting of the tank if the said pressure increased abnormally beyond the resistance strength of the tank.

E/1389/1997 According to him, the hydro-static pressure is so powerful that it can easily burst the steel tank of sufficient strength even if strength tests are carried out before restoring the molasses. He also submitted that the hydro-static pressure tests, thickness tests, etc., are the tests which can give the knowledge about condition of the tank but they cannot avoid the bursting of the tank and therefore failure to carry out the said tests cannot amount to negligence on the part of the Appellant. According to the Appellant, the construction and maintenance of steel tank is the job of civil department and the civil engineer in charge of the department is the proper person whose statement is reliable and the civil engineer has specifically stated in his statement that it is not necessary to carry out the hydro-static pressure test each and every year before taking the steel tank into use and that when in the normal course no deterioration or damage of the steel tank is visible there is no need of inspecting the tank thoroughly. During the course of arguments he also stated that the state excise authorities after proper verification of the entire matter has condoned the said loss of the molasses vide order dated 27.12.1996 but the learned Commissioner failed to take into consideration the said order despite the same being produced by the Appellant. The Learned Authorised Representative on behalf of the Revenue reiterated the findings recorded in the impugned order and prayed for the dismissal of appeal.

6. Needless to mention that all the accidents occurred due to lack of protections of the personnel responsible for avoiding such accidents and nobody indulges in such accidents purposely. If the observation as made by the learned Commissioner is accepted then it would make the said rule redundant. It is not the case of the Revenue that there is any malafide on the part of the Appellant to make the accident occur resulting in loss of molasses. The accident has occurred due to the formation of carbon dioxide gas through the whole volume of the E/1389/1997 molasses which raised the hydro-static pressure inside the tank and caused bursting of tank. Although in the impugned order, the learned Commissioner has mentioned that there were negligence on the part of the Appellant but on what material this finding has been given is lacking in the order.