( 1 ) REVENUE is before us in this appeal. A fire accident has occurred in the factory premises of m/s. Tulsyan NEC Ltd. , Doddaballapur. Several inputs were destroyed. It was stated that the respondent irregularly availed CENVAT credit on certain inputs, which were not received back from job work, the actual CENVAT credit attributable were not correctly arrived at and thereafter not adjusted the differential amount. It was further stated that irregularly, the respondent availed CENVAT credit of Rs. 4,02,497/- on inputs and not fully accounted for as having been disposed off in the manner specified in the said rules. It was stated that an application was filed before the Insurance authority seeking settlement of claim in the matter. A show cause notice was issued demanding duty and also imposing penalty under Rule 173q of the central Excise Rules. It was also stated that the assessee was liable to reverse the credit availed under Rule 57f (11) of the Central Excise Rules, 1944. The said Show Cause notice was confirmed by the Assistant Commissioner of Central Excise in terms of an order. Appeal was filed before the Commissioner. The Commissioner set aside the penalty and advised the assessee to approach the Tribunal with regard to the rejection of the application requesting for remission of duty. Thereafter, the assessee approached the Tribunal. The Tribunal accepted the case of the assessee. It is in these circumstances, the Revenue is before us. ( 2 ) THE following questions of law are raised by the Revenue: 1) Whether Rule 57i of the Central Excise Rules 1944 provides levy of central excise duty on the inputs on receipt of which CENVAT credit availed and not fully accounted for as having disposed off in the manner specified in the said rules. 2) Whether Section 11aa of Central Excise Act 1944 and Rule 173q of the erstwhile Central excise Rules, 1944 justify for imposing penalty wherein the assessee suppressed the material fact to the Department. ( 3 ) HEARD Sr. Yateesh Kumar, learned Counsel appearing for the Revenue. He says that the tribunal has committed a serious error in allowing the order despite the Judgment of the tribunal in the case of Mafatlal Industries Ltd. , v. Commissioner of Central Excise and Customs in 2003 (154 )ELT543 (Tri-Mumbai ). After hearing, we have carefully perused the material placed on record. Yateesh Kumar, learned Counsel appearing for the Revenue. He says that the tribunal has committed a serious error in allowing the order despite the Judgment of the tribunal in the case of Mafatlal Industries Ltd. , v. Commissioner of Central Excise and Customs in 2003 (154 )ELT543 (Tri-Mumbai ). After hearing, we have carefully perused the material placed on record. ( 4 ) ADMITTED facts would reveal that the inputs on which MODVAT Credit was availed had been issued for the manufacture of final products. Those inputs were lost due to fire accident. A claim was made before the insurance authority. The same was non settled in the matter. It was in these circumstances, the assessee contested the proceedings before the Assistant Commissioner (Commissioner of appeals) thereafter before the Tribunal. The Tribunal, after noticing the facts noticed the Judgment of the Tribunal in 2004 (173 )ELT187 (Tri-Mumbai ). In the said Judgment, the Mumbai Tribunal holds that in the event of inputs being lost in fire, duty credit recovered on account of destruction can be made over to the assessee. After noticing the said Judgment, the Tribunal was of the view that the assessee is entitled for relief on the facts of this case and in the given circumstances. In so far as the judgment in the case of Mafatlal Industries Ltd. , v. Commissioner of Central Excise and Customs in 2003 (154 )ELT543 (Tri-Mumbai ) is concerned, the Tribunal noticed in the said case that the claim was settled by the Insurance Company and it was in those circumstances, the Tribunal ruled that the assessee is not entitled for settlement of duty despite settlement by the Insurance Company. The Tribunal noticing the non settlement in the case on hand by the Insurance Company, has chosen to rightly distinguish the Judgment of the Mafatlal industries Ltd. , in the case on hand. We therefore are of the view that the order of the Tribunal cannot be interfered in the light of fire (sic) and in the light of the earlier Judgment of the tribunal in somewhat identical circumstances. However, we deem it proper to say that before settlement, the assessee is to file an affidavit that in the event of the settlement by the Insurance company. He would remit the benefit back to the Department in accordance with law. However, we deem it proper to say that before settlement, the assessee is to file an affidavit that in the event of the settlement by the Insurance company. He would remit the benefit back to the Department in accordance with law. Since the order is based on facts, we are not inclined to answer the questions of law in the case on hand. ( 5 ) APPEAL stands rejected without being admitted with the above observations. No costs.