ORDER
P.S. Bajaj, Member (J)
1. This appeal has been directed
by the appellants against the impugned order dated 18-4-2001 vide which the Commissioner as adjudicating authority has disallowed their abatement claim for the disputed periods.
2. The appellants are engaged in the manufacture of non-alloy steel ingots/billets. They filed abatement claims under sub-section (3) of Section 3A of the Act read with Rule 96ZO(2) of the Rules for the periods (i) 31-3-1998 to 23-4-1998; (ii) 16-10-1998 to 26-10-1998; (in) 23-11-1998 to 30-12-1998; and (iv) 4-1-1999 to 17-2-1999. Their claim for 31-3-1998 to 23-4-1998 had been allowed by the Commissioner, while for other three periods the same was disallowed solely on the ground that they did not sent any intimation regarding the closure of their unit to the jurisdictional Superintendent as required under Rule 96ZO(2)(a and c) of the Rules. They, however, sent the intimation to the Asstt. Commissioner as required under the said Rules.
3. The learned Counsel has contented that the intimation to the jurisdictional Superintendent was sent under postal certificate about the closure of the unit, but the Commissioner has wrongly not accepted the same without sufficient cause by observing that there was no presumption about the receipt of the intimation sent under postal certificate, by the jurisdictional Superintendent. The learned counsel has referred to the photo copies of the postal receipts placed on record showing the despatch of the letters by them on all the occasions when the unit of the appellants remained closed. He has, however, also conceded that for the period 23-11-1998 to 30-12-1998 the intimation was sent not on the date of closure itself but on 27-11-1998, and as such the claim for that period deserves to be allowed from 27-11-1998 and not earlier to that. The impugned order, according to him, disallowing the abatement claim for the above referred three periods is illegal and deserves to be set aside.
5. The learned JDR, on the other hand, has not been able to justify the impugned order of the Commissioner disallowing the abatement claim of the appellants for the above referred three periods.
6. We have heard both sides and gone through the facts on record. The bare perusal of the impugned order of the Commissioner itself shows that the appellants did sent the intimation to the Asstt. Commissioner about the closure of the unit on all the occasions as required under Rule 96ZO(2) of the Rules. An intimation was also sent by them to the Superintendent of Central Excise and their exists no cogent reason to doubt their version that the said intimation was sent under postal certificate. They have also placed on record the copies of the postal certificates dated 23-11-1998, 30-12-1998 and 4-1-1999, along with the requisite information about the stock of the finished goods and meter reading. This fact has not even disputed by the Commissioner in the impugned order. The Commissioner has also not disputed that due intimation in accordance with the rules about the closure of the unit was sent on all three occasions to the Asstt. Commissioner by the appellants. His view that intimation to the Superintendent under postal certificate was not proper and no presumption could be drawn that letter was actually received by the Superintendent cannot be subscribed, being legally not tenable. When the appellants had sent the intimation to the Asstt. Commissioner about the closure of their unit along with all other details, there was no motive or cause for them for not sending the intimation to the Superintendent. There is nothing on the record to suggest that the address mentioned on the postal certificates of the Superintendent was wrong/incorrect. There is also no material on the record to suggest that the letter sent by the appellants was received back as undelivered. Therefore, initial presumption deserves to be drawn is that the letters must have been received by the Superintendent. Mere denial on the part of the Office of the Superintendent that intimation was not received, is not sufficient to rebut the presumption about the receipt of the intimation by the Superintendent when it was sent under postal certificate in due course.
7. The only ground on which the abatement claim for the above referred three periods, had been disallowed by the Commissioner is the non-sending of intimation as required under the Rules 96ZO(2) of the Rules. But this ground, in view of the discussion made, is wholly untenable and cannot be sustained. Since on no other ground the abatement claim had been disallowed, in our view, the claims of the appellants deserve to be allowed. However, for the period 23-11-1998 to 30-12-1998 the abatement claim deserves to be allowed only from 27-11-1998 and not from 23-11-1998, as even conceded by the learned Counsel before us during the course of arguments. But, for the other two periods i.e. 16-10-1998 to 26-10-1998 and 4-1-1999 to 17-2-1999, the abatement claim of the appellants deserves to be allowed in toto. Therefore, we accordingly allow the abatement claims of the appellants.
8. In view of the discussion made above, the impugned order of the Commissioner is set aside and the appeal of the appellants is allowed in the above terms with consequential relief, permissible under the law.