Customs, Excise and Gold Tribunal - Bangalore
S.M.M. Steel Re-Rolling Mills Pvt. Ltd. vs Commissioner Of C. Ex. on 30 August, 2005
Equivalent citations: 2006(193)ELT462(TRI-BANG)
ORDER T.K. Jayaraman, Member (T)
1. This is an appeal against the Order-in-Original No. 3/2003, dated 20-8-2003 passed by the Commissioner of Customs & Central Excise, Calicut. The appellants were paying duty of Excise in terms of their Annual Capacity of Production as per Section 3A of the Central Excise Act, 1944 and Rule 96ZO of the erstwhile Central Excise Rules, 1944. The duty liability was fixed at Rs. 5,00,000/- per month for the year 1999-2000 by the Commissioner of Central Excise in his order dated 1-11-1999. On four occasions the appellants had closed their factory. Therefore they applied for abatement from duty to the extent of Rs. 5,28,605/- under Section 3A(3) and Rule 96ZO(2) of the ibid Rules. The Commissioner held that the appellants have not fulfilled the conditions prescribed under Rule 96ZO(2). Hence he rejected the claim for abatement. Aggrieved over the order of the Commissioner, the appellants have come before the Tribunal for relief.
2. Shri Jai Kumar, learned Advocate appeared for the appellants and Shri Ganesh Havanur, learned SDR for the Revenue.
3. The learned Advocate urged that the appellants had applied for the abatement as per requirements of Rule 96ZO(2) by informing the Assistant Commissioner in writing about the closure of the factory with a copy to the Superintendent of Central Excise either prior to the date of closure or on the date of closure. They have also intimated the electricity meter reading at the time of stoppage with the closing balance of stock of the ingots and billets. The Adjudicating authority denied the abatement on the ground that the closure intimation was received in the office of the Assistant Commissioner only after the closure and not prior to the date of closure or the date of closure. The learned Advocate submitted that as per practice prevalent, all letters to the Assistant Commissioner shall be deposited in a box kept at the office and invariably such box would be opened the next day. The acknowledgement would also be issued on the next day. In all the cases the appellants have given the intimation to the Superintendent of Central Excise on the same day. The copies of the intimation to the Superintendent with acknowledgement were also submitted. Since the Superintendent's office is situated in the same premises where the Divisional office is situated, there is no convincing reason as to why the appellants should delay the intimation to the Assistant Commissioner alone. Only in one case where the closure was at 1800 hrs on 26-2-2000, Saturday, the closure intimation could not be filed with the Superintendent on the same date, as Saturday was a closing holiday. Accordingly, the closure intimation was filed with the Superintendent of Central Excise on the immediate next working day i.e. 28-2-2000, Monday. The Commissioner has not at all taken above facts into consideration while denying the abatement. The learned Advocate relied on certain case laws wherein it is held that any application filed before Departmental authorities shall be taken cognizance of and acted upon.
4. Heard the learned SDR who reiterated the points in the Order-in-Original.
5. We have gone through the submissions made by both the sides and records of the case carefully. The fact that the office of the Superintendent and the Divisional office are situated in the same premises is not denied. The intimation of the closure of the factory and re-starting has been sent to the Assistant Commissioner as well as the Superintendent of Central Excise. The intimation letter contains the electricity meter reading and also the closing balance of stock of ingots and billets. The Adjudicating authority has denied the abatement on the ground that the intimation of closure as well as re-starting has been received quite late in certain cases in the office of the Assistant Commissioner. But having regard to that fact that these intimations have been received in time in the office of the Superintendent of Central Excise, we hold that the Rule 96ZO(2) conditions have been fulfilled. The denial of abatement on account of closure is not justified in the present case. Hence we allow the appeal with consequential relief.
Operative portion of the order already pronouced in open court on conclusion of the hearing