Document Fragment View

Matching Fragments

4. In the abatement appeal, it is the case of the appellants that they had submitted necessary intimation regarding closure of furnace for the periods from 2.12.97 to 9.12.97, 20.12.97 to 1.1.98, 10.1.98 to 27.1.98, 4.2.98 to 14.2.98 and 4.3.98 to 17.3.98 under their intimation letters dated 2.12.97, 19.12.97, 1.1.98, 9.1.98, 27.1.98, 3rd and 4th February, 1998. Consequent to such intimations, the show cause notice came to be issued on 12.1.99 regarding the abatement claim and Commissioner, by order dated 9.10.03 disallowed the same.

23 It is not in dispute that the appellants did not inform about the closure and starting of the factory in the manner it was required to be intimated in terms of sub-rule (2) of Rule 96ZO. The contention on behalf of the appellants is that there was substantial compliance of the provisions of law as intimation regarding non-functioning of the factory was duly communicated under the letters written from time to time.

24. A perusal of the letters about intimation of closure, particularly letter dated 2nd December, 1997 discloses that the same was presented in the office of Department only on 5th December, 1997. The letter dated 19th December, 1997 was presented on 23rd December, 1997. The letter dated 1.1.98 was presented on 2.1.98. The letter regarding restarting of the furnace dated 1.1.98 was presented on 5.1.98. The letter dated 9.1.98 regarding the closure was presented on 9th January itself. The letter dated 10.1.98 regarding the closure of furnace with effect from 10th January was presented on 12.1.98. The letter dated 12.1.98 regarding further intimation pertaining to the shutting down of furnace from 10.1.98 was presented on 12th January. The letter dated 27.1.98 regarding restarting of furnace was presented on the very day. Similarly, the letter of closing down of furnace from 4th of February was also presented on 4th February itself. Again the letter of restarting of furnace dated 18th of February was also presented on 18th February, itself. Perusal of these letters therefore, would disclose that some of the letters intimating the closure and/or commencement of functioning of furnace were sent on the very date on which the furnace was shut down or had commenced functioning. But in some cases, it was submitted on a day or two later than the date or subsequent to the day it was written.

25. As already seen above, the abatement claim in terms of 96ZO (2), has to be subjected to fulfilment of the conditions enumerated thereunder. Condition specifically provides that intimation of closure has to be either prior to the date of closure or on the date of closure. Similarly the intimation regarding restarting of production should be either prior to the date of actual commencement of production or on the date of commencement of production. Apart from these requirements, there are two other requirements specified under the said sub-rule and they relate (1) to the closing balance of stock of ingots and the billets of non-alloy steel at a time of closure as well as at a time of recommencement of production; and (2) the exact time of closure of factory and the timing at which the closure comes to an end. Undisputedly, some of the letters disclose the closing stock of ingots and other items with the appellant at a time of closure as well as recommencement of the furnace. The letters also refer to timing of closure or the commencement of the furnace. However, the letter dated 2nd December does not disclose exact time of the closure, apart from the fact that it was submitted on 5th of December though the closure was from 2nd December. Then, the letter dated 9th December informs shutting down of furnace from the following day at 8 hours but does not disclose the closing stock. The letter dated 1st January regarding recommencement of furnace disclose the time to be of 8 hours on 1st January. However, it was submitted on 2nd January and does not disclose the opening stock. The letter dated 1st January which was submitted on 5th January disclose that the furnace had restarted at 8 hours on 1st January and it also refers to the closing stock at the time of start of the furnace. The letter dated 9th January is regarding the closure of furnace from 10th January at 8 hours but it does not disclose the balance stock. The letter dated 12th of January informs closure of furnace from 10th January at 8.30 hours and refers to closing stock. The letter dated 27th of January is about commencement of furnace from the very date at 8.30 hours. But it does not disclose the opening stock. The letter dated 4th of January is about shutting down of furnace from 4th of February at 7.10 hours and disclose the closing stock. It was submitted on the very day. The letter dated 3rd February was submitted on 5th February regarding shutting down of furnace from 4.2.98 at 8 hours. The letter dated 18th of February is about restarting of the furnace but on the very day at 8 hours but it does not disclose the opening stock. In other words, except letter dated 4th February, 1998, no other letter is complete in respect of all the information as is required to be furnished under sub-rule (2) of Rule 96ZO. But the contents of the letter dated 4th February do not tally with the contents of letter dated 3th February in relation to the time of closure of furnace from 4th February, 1998. It is pertinent to note that the letter dated 4th February was presented on 4th February itself but letter dated 3rd February was submitted on 5th February. While the first letter speaks of closure from 7.10 hours, subsequent letter speaks of closure from 8 hours.

Thanks Yours faithfully For MITTAL ALLOYS Sd/-
PARTNER PLACE: LUDHIANA Dated: 21.3.98 C.C. The Superintendent Central Excise Range V, Ludhiana 

40. Plain reading of the letter quoted above would disclose that it does not anywhere deal with the issue of alleged dispossession of the appellants from the premises. The said letter refers to the closure of the premises. In other words, at the most, it could have been treated as an intimation of closure of factory. It is also pertinent to note that inspite of ample number of opportunities given to the appellants, they failed to appear before the authority. In other words, even assuming that the appellants wanted to contend that letter dated 21.3.98 was in respect of intimation pertaining to dis-possession of the appellants from the premises, there was no occasion for the authority to read any such thing in the said letter in the absence of proper explanation in that regard in the matter as admittedly no such explanation as regards the said letter dated 21.3.98 was ever forwarded to the Revenue authorities. Besides, as already stated above, the provision of sub-rule (2) of Rule 96ZO are not attracted in the case of appellants factory in question. Being so, we wonder as to how the letter dated 21.3.98 could convey and establish the claim of alleged dis-possession from the factory premises. Besides, the question of dispossession from the factory premises is a question of fact to be established by producing proper evidence in that regard on record. It cannot be by way of inference to be drawn from the letter dated 21.3.98.