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TMI Blog2015 (10) TMI 2080X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment filed appeal challenging that the intimation was not given three days prior to the closure/stop of production. The Commissioner (Appeals) allowed the appeal rejecting the claim for abatement. Aggrieved the assessee is before the Tribunal. 3. The only issue that poses for consideration is whether the assessee/appellant has intimated the Assistant Commissioner three days prior to the closure of production. The relevant provision Rule-10 of Pan Masala Machines (Capacity Determination and Collection of Duty) Rules, 2008 is noticed as under: Rule 10 Abatement in case of non-production of goods.-In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proporti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Fax Transaction Report dated 30.08.2013. It is also their case that copy of such intimation dated 30.08.2013 was submitted to Superintendent, Jagdalpur on the same day. It is the case of Revenue that the intimation reached their office only on 3.09.2013 and has not reached on 30.08.2013. The observation of the Commissioner (Appeals) in the impugned order is as under: On perusal of the said Fax Transaction Report, it is observed that from the fax report, it cannot be established as to whether under such fax transaction report, the letter regarding intimation of closure of factory w.e.f. 03/09/2013 has been sent by the respondent to the appellant. Also, it is not clear from its status as to whether the same has been transmitted suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise, Range Jagdalpur has been directed under letter no. IV (16) 05/Misc/Rohit Tobacco/JDP/Bhi-I/2013/3847 dated 30.09.2013 to take necessary action for sealing of o1 pouch packing machines from the midnight of 03.09.2013. 6. The statement of Panchnama dated 3.09.2013 it is stated that according to letter sent on 30.08.2013, the machines were sealed on 3.9.2013. 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 categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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