2015 (10) TMI 2080 - AT - Central Excise

Denial of abatement claim - Closure of production - Pan Masala Packing Machines - whether the assessee/appellant has intimated the Assistant Commissioner three days prior to the closure of production - Held that - There is no dispute that the Fax No. belongs to the concerned Central Excise office to which intimation has to be sent. When the officers have gone to the premises of the factory on 3.09.2013 itself to seal the machines, they had no case that they had received the intimation only on 3.09.2013 and not on 30.08.2013. Surprisingly, the primary adjudicating authority has categorically held that intimation dated 30.08.2013 was received. Rule 10 does not provide the manner in which the intimation has to be send. The Commissioner (Appeals) has no definite case that the intimation was not received. Looking at the Transaction Report, he assumes that the intimation has not been received as it is not clear from its status as to whether the fax is successfully transmitted or not. These conclusions are merely based on assumptions and presumptions. The Fax report along with statement of Panchnama and the totality of facts establish that appellant has given the intimation on 30.08.2013. When the appellant has given intimation three days prior to the date of closure, the denial of refund/abatement is unjustified. The same has to be allowed. - Decided in favour of assessee.

Summary

Issues:
1. Rejection of claim of abatement under Panmasala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008.

Detailed Analysis:
The appellant, engaged in the manufacture of Panmasala, faced rejection of their claim of abatement under the Pan Masala Packing Machines Rules, 2008. The appellant had stopped production and subsequently applied for abatement, which was initially sanctioned but later challenged by the Department. The main issue under consideration was whether the appellant had intimated the Assistant Commissioner three days prior to the closure of production, as required by Rule 10 of the Rules.

The appellant contended that they had indeed provided timely intimation of the closure, submitting evidence of a fax sent on 30.08.2013 to the Assistant Commissioner and Range Superintendent. However, the Revenue claimed that the intimation was received only on 3.09.2013, casting doubt on the timing of the communication. The Commissioner (Appeals) raised concerns about the clarity of the fax transaction report and the status of the transmission, leading to the rejection of the abatement claim.

The adjudicating authority noted that the appellant had sent the intimation on 30.08.2013, as evidenced by their letter and the sealing of machines on 3.09.2013. Despite the Revenue's assertions, there was no concrete evidence to suggest that the intimation was not received on time. The Tribunal observed that the intimation was sent to the correct office via fax and that the officers sealed the machines promptly, indicating receipt of the intimation. The Commissioner (Appeals) based their decision on assumptions rather than concrete proof, leading to an unjust denial of the abatement claim.

Ultimately, the Tribunal set aside the impugned order, allowing the appeal and directing for consequential relief, if any, in favor of the appellant. The judgment emphasized the importance of timely intimation as per the rules and highlighted the need for decisions based on factual evidence rather than assumptions.