2017 (4) TMI 552

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....pacity of production of the assessee had been fixed by the Commissioner of Central Excise as 25278 MT. The appellant had opted for payment of duty as per Rule 96ZP(1) of the then prevailing Central Excise Rules, 1944 for the year 1998-99 and as such the appellant were required to pay central excise duty accordingly. However, on the allegation that the appellant paid the central excise duty less than what was due which resulted in the short payment of central excise duty, two show-cause notices were issued wherein the demand was proposed for the amount of Rs. 2703/- for the month of March 1998 and for Rs. 41,09,326/- for April 1998 to March 1999. In the adjudication order no.10/ADDL.COMM/GOA/CX/2004 dated 19.05.2004 demand of Rs. 41,09,326/-....

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....er is premature and the same is not sustainable on this ground itself. He submits that even if there is any procedural lapse in claiming the abatement the same cannot be denied only for procedural lapse. He placed reliance on the following judgments:- • Shabnam Processors 2008 (224) ELT 275 • Jay Iron & Steel Industries 2016 (335) ELT 49 He further submits that even if there is a delay in claiming the abatement, the same should be considered on merit. In this regard he placed reliance on the Share Medical Care 2007 (209) ELT 321 (SC). 3. Shri Ashutosh Nath, Ld. Asstt. Commissioner (AR) appearing for the revenue reiterates the findings in the impugned order. He submits that the claim of the appellant regarding....

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.... manufacturer shall intimate the reading of the electricity meter to the Assistant Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, immediately after the production in his factory is stopped along with the closing balance of stock of the hot re-rolled products of non-alloy steel. (1) 22.07.1998 Page - 57 Letter to Suptd. giving information of consumption of electricity, total electricity, quantity of raw materials consumed, total quantity of finished goods cleared etc. monthwise from April 1998 to June 1998 (c) the manufacturer, when he starts production again, shall inform in writing about the starting of production to the Assistant Commissioner of Central Excise or Deputy Commissioner of ....

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....e.f. 15.06.1998 5. From the above, compliance it appears that the appellant have followed the procedure laid down under 96ZB(2) of Central Excise Rules, 2002. It is further seen that the appellant's request though declined by the Commissioner vide letter dated January 1999 but the appellant's subsequent letter dated 01.02.1999 was not disposed of by the Commissioner. In view of the above fact, I find that the confirmation of duty demand by the adjudicating authority i.e. Additional Commissioner is premature. It is desirable that the ld. Commissioner should have considered the detailed correspondence made by the appellant for claiming abatement of duty during the closure of the factory which was not done so. Therefore, the demand is prema....