Customs, Excise and Gold Tribunal - Delhi
Shivanshi Ferrous (P) Ltd. vs Commissioner Of Central Excise on 31 March, 2003
Equivalent citations: 2003(156)ELT263(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. The appellants were engaged, during the material period, in the manufacture of MS ingots under the compounded levy scheme of Rule 96ZO of the erstwhile Central Excise Rules, 1944. They closed down their unit from 7-6-98 to 2-7-98 on account of disconnection of electric supply by the UP State Electricity Board. They filed a claim with the jurisdictional Commissioner of Central Excise for abatement of duty for the said period. This claim was rejected on the following grounds related to the procedure laid down under Sub-rule (2) of Rule 96ZO :-
(i) Electric meter readings at the time of closure and re-start of the unit were not furnished by the party;
(ii) The balance of stock at the time of re-start of production was not furnished;
(iii) Declaration of continuous closure of the factory during the above period was not submitted.
2. Against the above decision of the Commissioner, the party preferred appeal to this Tribunal and this Bench remanded the matter as per Final Order dated 23-11-2000 wherein it was observed that the Commissioner had not examined the question whether the unit was actually closed during the above period and also had not considered the pleading of the party that the electric meter was not accessible to them. In the remand order, this Bench further observed that any certificate issued by any Government Department could be taken into consideration while dealing with abatement claims. The present appeal is against the order passed by the Commissioner pursuant to the remand order of this Bench.
3. In the impugned order, the Commissioner has again found that the party had not fulfilled the mandatory procedural requirements of Rule 96ZO(2) and, accordingly, he has rejected the appellants' abatement claim.
4. Heard both the sides. The learned Counsel for the appellants submits that the Commissioner, in the remanded proceedings, did not apply his mind to the UPSEB certificate which had certified that the power connection to the appellants' unit had been disconnected from 7-6-98 (10 AM) to 2-7-98 (10 PM). The learned Commissioner also did not properly appreciate the fact that the room housing the electric meter was under the lock and key of UPSEB and hence the meter was not accessible to the appellants for taking the readings. The learned Counsel refers to an order passed by the same Commissioner in favour of another party (order No. 8/Comm/Tech/2001, dated 12-12-2001 passed in the case of M/s. Raj Ratan Castings Pvt. Ltd.). That was an order allowing an abatement claim after accepting a similar certificate of the UPSEB as a "substantive piece of evidence". The learned Counsel particularly relies on the following paragraph of the cited order of the Commissioner :-
"As UPSEB is the only authority for ensuring distribution of electricity all over UP and now has been converted into UP Power Corporation Ltd., a State Government organization. I differ with the views of earlier orders that the certificate given by UPSEB can only be recommendatory in nature. The certificate given by the UPSEB is therefore a substantive piece of evidence regarding closure of the unit from 27-5-1998 to 10-2-1999 and can be relied upon for extending the benefit of abatement to the party."
5. The cited order was one passed by the same Commissioner in a matter remanded by the Tribunal as per Final Order No. A/214/2000-NB(DB). The Counsel submits that this remand order of the Tribunal has been considered by the Commissioner in the instant case while passing the impugned order. Nevertheless, he has not followed the precedent which was set in the aforeextracted paragraph of his order passed pursuant to the remand Order No. A 214/2000 ibid. The learned Counsel submits that the UPSEB certificate in the instant case has not been taken into any serious consideration. He also reiterates other grounds of the appeal and prays for setting aside the impugned order.
6. The learned DR opposes the above prayer and vehemently submits that the procedure laid down under Rule 96ZO(2) for claiming abatement of duty was mandatory and therefore, non-fulfilment of any of the conditions laid down thereunder would lead to rejection of the claim. According to the learned DR, this was what happened in the appellants' case. The appellants did not fulfil the mandatory requirement of electric meter readings and stock position of the goods being furnished to the Department in support of their claim. They also did not declare that their unit was lying closed continuously for the relevant period. The abatement claim was therefore, not liable to be allowed.
7. I have carefully examined the rival submissions. This Tribunal had, in its remand order dated 23-11-2000, noted with sufficient emphasis that certificate issued by any Govt. Department could be taken into consideration while dealing with a claim for abatement under Rule 96ZO(2), thereby meaning that the certificate issued by the UPSEB ought to have been seriously taken into consideration. Going by the impugned order, one would find that this mandate of the remand order has not been properly followed by the Commissioner. In this context, it is pertinent to note that, as pointed out by the learned Counsel, the learned Commissioner himself had, in an earlier case of another party, taken a view that a certificate issued by the UPSEB was a substantive piece of evidence in support of a claim for abatement of duty under Rule 96ZO(2). That view needs to be appreciated. However, the Commissioner has not followed the precedent in the instant case involving similar facts. In the circumstances, I am constrained to remand the matter once again to the learned Commissioner to pass a fresh speaking order in terms of the remand order dated 23-11-2000 of this Bench, after applying mind properly to the Electricity Board's certificate and appreciating its evidentiary value in the light of the view expressed in the afore-extracted paragraph of the cited order dated 12-12-2001. It goes without saying that before passing such order a reasonable opportunity of being heard shall be made available to the party. The impugned order is set aside and the appeal is allowed by way of remand.