Advance intimation condition could not defeat abatement where compliance was impossible before the notification became operative.

Abatement of duty could not be denied for failure to give seven days' advance intimation where the notification imposing that condition came into force on 01.07.2008, after the closure intimation had already been filed on 29.06.2008 and the factory had in fact closed from 30.06.2008/01.07.2008. The principle lex non cogit ad impossibilia applied because compliance with a condition impossible to meet before the notification became operative could not be insisted upon. The rejection was also unsustainable because the appellate authority relied on a factual basis beyond the show cause notice and unsupported by the record, so the abatement claim was accepted.

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Issues: Whether abatement of duty was admissible where the closure intimation preceded the coming into force of the notification requiring advance notice, and whether rejection on the ground of non-compliance with the advance intimation condition was sustainable.

Analysis: The notification governing abatement came into force on 01.07.2008, while the appellant had already intimated closure on 29.06.2008 and the factory was in fact closed from 30.06.2008/01.07.2008. The condition of giving seven days' advance intimation could not be complied with before the notification itself became operative. In such circumstances, the principle lex non cogit ad impossibilia applied. The order under appeal was also found to travel beyond the allegations in the show cause notice, and the factual basis adopted by the Commissioner (Appeals) was treated as unsupported by the record.

Conclusion: The rejection of the abatement claim was unsustainable. The appellant was entitled to abatement, and the appeal succeeded.

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