Brick kiln firing period cannot be rejected without a legal duty to notify temporary closure; capacity estimate needs reconsideration.

Absent any statutory or rule-based duty to intimate temporary closure of a brick kiln, the claimed firing period could not be rejected solely for lack of such notice. The finding discarding that period was therefore unsustainable. On kiln capacity, conflicting survey material and later measurements were not properly reconciled, so the estimated capacity used in assessment required fresh consideration on the relevant evidence. The Tribunal's assessment order was set aside and the matter was remitted for fresh decision in accordance with law.

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Issues: (i) whether the assessee's claimed firing period for the brick kiln could be discarded on the ground that no intimation of temporary closure was given to the department; (ii) whether the estimated kiln capacity adopted for the assessment required fresh consideration.

Issue (i): whether the assessee's claimed firing period for the brick kiln could be discarded on the ground that no intimation of temporary closure was given to the department.

Analysis: The rejection of the firing period rested solely on the supposed failure to intimate the temporary closure. The record disclosed no provision or rule imposing any such obligation on the assessee. In the absence of a legal duty to notify the department, the firing period could not be rejected on that basis.

Conclusion: The firing period could not be ignored merely for want of intimation, and the contrary finding was unsustainable.

Issue (ii): whether the estimated kiln capacity adopted for the assessment required fresh consideration.

Analysis: The capacity of the kiln had been taken differently in survey reports made close in time, and the later assessment year reflected measurements supporting the assessee's case. The authorities had not recorded a proper finding on the conflicting material, making it necessary to reconsider the question carefully on the existing and relevant evidence.

Conclusion: The kiln capacity determination required reconsideration by the Tribunal.

Final Conclusion: The assessment order of the Tribunal was set aside and the assessee's appeal was directed to be decided afresh in accordance with law.

Ratio Decidendi: In the absence of a statutory requirement to intimate temporary closure of a brick kiln, the firing period cannot be rejected on that ground alone, and where material facts bearing on estimated production are inadequately considered, the matter must be remitted for fresh decision.

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