9911796707
TMI Blog2002 (11) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... Ingots in respect of which Central Excise duty was paid under the provisions of Section 3A of the Central Excise Act; that during the period from 1-9-97 to 31-3-98 their factory remained closed during the varying periods on account of disconnection of the power, periodical power cuts, shortage of raw materials, break-down in the furnace, etc.; that a show cause notice dated 5-6-98 was issued to them for demanding differential duty on the basis of the annual capacity of production determined by the Commissioner; that the Commissioner under the impugned Order has confirmed the demand of duty without allowing abatement claimed by them and has also imposed an equivalent amount of penalty under Rule 96ZO of the Central Excise Rules, 1944. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tually cleared by them was payable; that in any case if the Tribunal allows the abatement as claimed by them the duty amount has to be recomputed by the Commissioner as the actual demand of duty will come down on account of availability of abatement from the payment of duty. 3. Countering the arguments Shri Jagdish Singh, learned D.R., submitted that as per Rule 96ZO(2) the abatement was available subject to the conditions that the manufacturer informs in writing about the closure to the Asstt. Commissioner with a copy to the Suptd. either prior to the date of closure or on the date of closure; that he has to intimate the reading of the electricity meter along with the closing balance of the stock of the finished goods in his factory; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Midland Alloys and Steel P. Ltd. v. CCE, Chandigarh, [2002 (139) E.L.T. 339 (T) = 2001 (47) RLT 1027 (CEGAT)] wherein the Tribunal disallowed the abatement as intimation of closing balance of stock of ingots and billets was not given. He also mentioned that the penalty is imposable as the Appellants are supposed to pay first the duty of Excise and then claim abatement from payment of duty. 4. We have considered the submissions of both the sides. It has been stated by the learned Advocate for the Appellants that they had claimed the abatement for 8 different periods between September, 1997 to March, 1998. The learned Advocate has conceded their non-eligibility to abatement claim in respect of following two periods, and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se registers the stock of every point of time could be found out but in spite of such materials available in RG-1 Register it was thought necessary and provision is made under Rule 96ZO(2)(b) that as and when intimation is given by the assessee about the stoppage of production the closing balance of stock at that point of time also should be referred in the intimation . The ratio of the decision in the case of Steel Industries of Hindustan relied upon by the learned Advocate is not applicable as the Appellants therein had mentioned the opening balance instead of closing balance as required in clauses (b) and (d) of Rule 96ZO(2). In view of the fact that for the said period the Appellants had not furnished electric meter reading and closing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . No. 4 we find that the intimation has been received by the department on the date of closure itself as letter dated 18-2-98 bears receipt of the Central Excise, Div. Sonipat and the intimation also contained the meter reading as well as the position of the furnished stock. The Appellants are, therefore, eligible for abatement for Sr. No. 4 also. 7. We agree with the learned D.R. that penalty is imposable on the Appellants for non-payment of duty. As the demand of duty has to be re computed in view of our order, the Adjudicating Authority may re-consider the question regarding imposition of penalty after affording reasonable opportunity of hearing to the Appellants. The appeal is disposed of in the above terms. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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