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TMI Blog2017 (5) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... l No.E/465/2010. There is duty demand of Rs. 55,76,618/-. In appeal No.E/426/2012, the impugned order has been passed by the lower authorities as a consequence of confirmation of demand in the impugned order in Appeal No.E/465/2010. As the issue involved in both the appeals is common, therefore, both the appeals are disposed of by this common order. 3. The facts of the case are that the appellants are engaged in the manufacture of Pan Masala classifiable under chapter 21 and Gutka classifiable under chapter 24 of the Central Excise Tariff Act, 1985. It is a fact on record, the appellant wrote to the Superintenent on 29.6.2008 intimating that their factory would remain closed w.e.f.30.6.2008 owing to lack of orders, till further intimation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty attributable for the 15 days when its factory was remained closed. On being advised by the department that the proper course would be to claim abatement, the appellant submitted an application accordingly on 29.8.2008. On 05/09.09.2008, the show cause notice was issued to the appellant alleging that it was ineligible to claim abatement for failure to fulfil the conditions of stipulated in para 10 of Notification No.30/08-CE (NT) primarily for the reason that intimation regarding closure was not given 15 days prior to that. The application for abatement claim was allowed by the adjudicating authority. Revenue preferred an appeal before the Commissioner (Appeals), who set aside the adjudication order granting abatement claim on 30.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 3.7.2008 of the Assistant Commissioner and the panchnama dated 2.7.2008, too, do not support the case of the department rather they establish the appellant's case in as much as it confirms that the factory was not working and was closed. The only ground on which the show cause notice issued to the appellant sought to deny refund to it, i.e. that the appellant had failed to give 3 days‟ advance notice regarding closure, was rightly rejected by the Assistant Commissioner applying the principle lex non cogit ad impossibiia, as the Rules itself had come into force only w.e.f.1.7.2008. Therefore, the appellant is entitled for refund claim. To support his contention, he relied on the following decisions: (i) CC vs. Tullow India Operaton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art his production of notified goods, he shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, of the date from which he would restart production, whereupon the seal fixed on packing machines would be opened under the physical supervision of Superintendent of Central Excise. 8. In the show cause notice, it has been alleged that as the appellant has not given intimation in seven days in advance, therefore, they are entitled to take the benefit of notification. We have seen that the appellant filed intimation for closure of the factory on 29.6.2008 which is prior to the introduction of the said Rule but the factory was closed form 1.7.2008 when the rule came into existe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had been conferred on the Commission. It is now a well-settled principle of law that the rule of law inter alia postulates that all laws would be prospective subject of course to enactment of an express provision or intendment to the contrary. 10. Therefore, the allegation made in the show cause notice is not sustainable for rejection of claim of abatement filed by the appellant. 11. We further observe that the Commissioner in the impugned order has gone beyond the scope of the show cause notice and also observed as under: (i) The copy of the letter dated 29.6.2008 intimating of the closure of the factory from 1.7.2008 and it was received on 1.7.2008 (ii) There were differences in the unsigned and signed copies of the panchnama, inas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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