Custom, Excise & Service Tax Tribunal
M/S Aswad Steels & Alloys (P) Ltd vs C.C.E., Meerut I on 18 April, 2009
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 18.8.2009 Central Excise Appeal No.5950 of 2004 Arising out of the order in original No.19/COMMR/mrt-i/2004 dated 29.10.2004 passed by the Commissioner , Central Excise, Meerut. For Approval and Signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri B.S.V. Murthy, Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s Aswad Steels & Alloys (P) Ltd. . Appellant Vs. C.C.E., Meerut I . Respondent
Appearance:
Shri Alok Arora, Advocate for the appellants/applicants Shri K.P. Singh, Authorized Departmental Representative (DR) for the Revenue Coram: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri B.S.V. Murthy, Member (Technical) Oral Order No.____________________ Per B.S.V. Murthy:
The appellants are engaged in the manufacture of M.S. ingots availing central excise duty on the basis of annual production capacity fixed by the Commissioner with effect from 1.9.97 under Rule 96ZO(3). The dispute has arisen in this case because the Commissioner in the impugned order has not allowed the abatement of payment of central excise duty for the period during which the factory had remained closed from 1.9.97 to 22.9.97 and from 1.11.97 to 15.1.98.
2. The learned Advocate submits that the appellant does not use electric power supplied by the Electricity Board but the factory is run only with the help of D.G. Sets. Because of problems given by DG Sets, they had kept the factory closed and the factory was not working during the period from 28.7.97 to 21.9.97 and again from 1.11.97 to 15.1.98 and in respect of both the periods, intimations were given to the concerned Assistant Commissioner. He also submits that in respect of the first period of closure, they had written a letter dated 26.9.97 and on the body of the letter, the Assistant Commissioner had observed :
Abatement of first 15 days is given. However, deposit the duty for second fortnight completely and apply to Commissioner for refund of 7 days. He submits that Commissioner has rejected the claim for abatement on the ground that the Assistant Commissioner had no power to give abatement for 15 days, secondly, they had not fulfilled the requirement of Rule 96ZO(2) of Central Excise Rules since they had not given electric meter reading. However, it is his submission that they have not been given electric meter by the electricity board they were not using the power supplied by the electricity board.
3. Learned DR reiterates the ground of the Commissioner in the impugned order in support of his conclusion.
4. We have carefully considered the submissions made by both sides. The very fact that the Assistant Commissioner in the letter of the appellant on 26.9.97 had allowed abatement of 15 days shows that this was based on inspection of the factory and also takes us to conclusion that the factory was not functioning during the period and this was not disputed by the Revenue. Further, with regard to second period also the appellant had intimated on 31st October 1997 about the closure from 1.11.97. They had also intimated the closing balance and stock of MS ingots and also informed the Revenue that they had started production again. We find only one condition under Rule 96ZO(2) that intimation regarding reading of the electricity meter to Assistant Commissioner, Central Excise with a copy to Range Superintendent , Central Excise, has not been fulfilled by the appellants. However, the appellants were not using power supply from electricity board and therefore, they could not have given electricity meter reading. Further, the intimation has not been challenged. We find that all other requirements have been fulfilled and the Department also is not contesting that factory had remained closed but the claim for abatement has been rejected only on the ground that reading of electricity meter has not been given to the Department. Under these circumstances, we consider that rejection was only on technical ground in view of the fact that factory was running only on DG sets and this is not disputed by the Department at all.
5. In view of above discussion, the impugned order is set aside and the appeal is allowed with consequential relief to the appellant.
(Justice R.M.S. Khandeparkar) President (B.S.V. Murthy) Member (Technical) scd/ ??
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