- (1.) CEA No. 13 of 2007 : The present appeal has been filed by the appellant under Section 35H(1) of the Central Excise Act, 1944 (hereinafter referred to as the Act') against the order dated 17-4-2002 [2002 (147) E.L.T. 798 (Tri. - Del.).] dismissing its appeal and the order dated 16-12-2002 declining rectification application, passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (hereinafter referred to as the Tribunal') proposing following substantial questions of law :- (i) "Whether in the facts and circumstances of the case, the tribunal was right in confirming the order of the Commissioner when admittedly the Commissioner has on principle allowed abatement from the date of receipt of intimation but has not considered that date for allowing abatement claim? (ii Whether in the facts and circumstances of the case, the Tribunal was right in not considering the plea of the applicant with regard to denial of natural justice by the Commissioner when, admittedly no personal hearing was granted and no Show Cause Notice was issued by the Commissioner? (ii Whether in the facts and circumstances of the case the learned Commissioner was right in confirming the order of the Commissioner when in various judgments the Tribunal has held that abatement claim under Rule 6 ZO(2) shall be available from the date of filing of the intimation of closure, even in cases where the intimation is filed late? (iv Whether the Tribunal was in error while holding that the applicant shall be disallowed claim for one day as a penalty when it is not so provided in the rules?"
(2.) The facts necessary for adjudication of this appeal are that the appellant manufactures M.S. Ingots which are subject to Central Excise Duty at the compounding rates as per the provisions of Section 3A of the Central Excise Act, 1944 (hereinafter referred to as the Act'). In terms of Rule 96ZO(2) of the Central Excise Rules, 1944 where a manufacturer does not produce the goods during any continuous period of not less than seven days and wishes to claim abatement under sub-section (3) of Section 3A of the Act, the abatement will be allowed by the Commissioner of Central Excise of such amount as may be specified in such order, subject to the fulfilment of the prescribed conditions. The conditions relevant to the present case are extracted below :- "(a) the manufacturer shall inform in writing about the closure to the Asst. Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, either prior to the date of closure or on the date of closure. (b) the manufacturer, when he starts production again, shall inform in writing about the starting of production to the Asst. Commissioner of Central Excise, with a copy to the Superintendent of Central Excise, either prior to the date of starting production or on the date of starting production."
(3.) The appellant applied for abatement on closure of the units for different periods which was subsequently allowed. However, since the intimation/s was submitted late by one day, the period of 21 days was deleted therefrom amounting to disallowing of the abatement claim of Rs. 3,43,700/-. A perusal of the chart reproduced in the order of the Tribunal dated 17-4-2002 reveals that in each case the appellants were closing their factory just before the midnight of the date from which they are claiming the abatement for closure but were sending such intimation only on the next day and it was in these circumstances that the claim for that particular day in each case was disallowed.;