9911796707
TMI Blog2015 (10) TMI 1677X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding should not have been continued since it is not legal to continue with the same. - Decided in favour of assessee. - Customs Appeal No.00075 of 2008 - - - Dated:- 25-5-2015 - Mr. Justice G. Raghuram and Mr. B.S.V. Murthy, JJ. For The Appellant : Mr. N. Anand, Advocate For The Respondent : Mr. Geelani Barsha, A.R. The appellant is engaged in the manufacture of M.S. Ingots falling under CTH 72.04. During the relevant time to which the dispute relates to, the products which notified under Section 3A of the Central Excise Act, 1944 and the duty liability was based on annual capacity determined by the Commissioner. According to the provisions of Central Excise Rules, the Commissioner had determined the duty liability at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all. 7. After hearing both sides and on going through the records, we find that in this case, the Rule 96ZO(2) reads as under: Where a manufacturer does not produce the ingots and?(2) billets of non-alloy steel during any continuous period of not less than seven days and wishes to claim abatement under sub-section (3) of Section 3A of the Central Excise Act, 1944 the abatement will be allowed by an order passed by the Commissioner of Central Excise of such amount as may be specified in such order, subject to the fulfilment of the following conditions, namely:- (a) the manufacturer shall inform in writing about the closure to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, either pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer the matter to Commissioner for consideration. When Rules do not require any application to be made, denial of abatement on that ground cannot be sustained. 8. Besides, we find that reliance by the ld. Counsel on the decision of the Hon ble Gujarat High Court is also appropriate. We find that Hon ble High Court in the case of Krishna Processors in paragraph 22 made the following observations: 22.For the foregoing reasons, the petitions succeed and are accordingly allowed. Rule 96ZQ(5)(ii) of the Central Excise Rules, 1944 is held to be ultra vires Articles 14, 19(1)(g) and 265 of the Constitution of India. It is further held that after the omission of Rules 96ZQ, 96ZP and 96ZO of the Rules with effect from 1st March, 2001 no pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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