2017 (4) TMI 552 - AT - Central Excise

Short payment of tax - abatement of duty - appellant s case is that they have been requesting for abatement of duty on the ground that most of the time the factory was closed during the material period and the appellant have scrupulously followed the procedure - Held that - the appellant have complied with various provisions of Rule 96ZB(2) for claiming the abatement of duty - the appellant s request though declined by the Commissioner vide letter dated January 1999 but the appellant s subsequent letter dated 01.02.1999 was not disposed of by the Commissioner. In view of the above fact, the confirmation of duty demand by the adjudicating authority i.e. Additional Commissioner is premature. It is desirable that the ld. Commissioner should have considered the detailed correspondence made by the appellant for claiming abatement of duty during the closure of the factory which was not done so - demand being premature, is set aside - matter related to the abatement of duty needs to be reconsidered - appeal allowed by way of remand.

Issues involved:
- Central excise duty payment based on annual production capacity
- Allegation of short payment of central excise duty
- Jurisdiction of Additional Commissioner to decide abatement of duty
- Compliance with Rule 96ZB(2) of Central Excise Rules for claiming abatement
- Premature confirmation of duty demand by Additional Commissioner

Central excise duty payment based on annual production capacity:
The appellants, engaged in manufacturing rerolled steel products, were liable to pay central excise duty based on their annual production capacity under Section 3A of the Central Excise Act, 1944. The Commissioner fixed the production capacity at 25278 MT, and the appellants opted to pay duty as per Rule 96ZP(1) of the Central Excise Rules for the year 1998-99. However, show-cause notices were issued alleging short payment of duty, leading to a demand of &8377; 41,09,326 for April 1998 to March 1999.

Jurisdiction of Additional Commissioner to decide abatement of duty:
The appellant claimed abatement of duty due to factory closures during the material period, following the required procedures of Rule 96ZB(2) of the Central Excise Rules. The appellant argued that the Additional Commissioner lacked jurisdiction to decide on abatement, as only the Commissioner had the authority under the rules. Despite the appellant's submissions and procedural compliance, the abatement claim was rejected in the adjudication order.

Compliance with Rule 96ZB(2) for claiming abatement:
The appellant demonstrated compliance with Rule 96ZB(2) by providing detailed date-wise submissions regarding factory closures, electricity meter readings, and production restart notifications. The appellant's compliance with the procedural requirements was evident from the documentation submitted, indicating adherence to the rules for claiming abatement.

Premature confirmation of duty demand by Additional Commissioner:
The Tribunal found that the confirmation of duty demand by the Additional Commissioner was premature. The Commissioner had rejected the appellant's abatement request in January 1999, but a subsequent letter for reconsideration remained pending. The Tribunal concluded that the demand was premature due to the Commissioner's failure to consider the detailed correspondence regarding abatement, emphasizing the need for proper evaluation before confirming duty demands.

Decision and Remand:
The Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority. The Commissioner was directed to reconsider the abatement claim filed by the appellant before making a fresh decision on the duty demand from the show-cause notice. The adjudicating authority was instructed to provide the appellant with a personal hearing before deciding on abatement and duty demand, ensuring a fair opportunity for the appellant.

This detailed analysis of the judgment highlights the key issues addressed, including central excise duty payment, jurisdictional concerns, procedural compliance, and the Tribunal's decision to remand the matter for proper evaluation.

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