ORDER
G.A. Brahma Deva, Member (J)
1. This appeal arises out of and is directed against the order dated 11-3-99 passed by the Commissioner, Kanpur.
2. Arguing for the appellant Shri R. Santhanam, ld. Advocate submitted that the issue relates to abatement of duty for closure of the unit with reference to determination of Annual Production Capacity. He said that in the instant case the unit was closed for more than 7 days. Further, he said that unit was closed on 15-1-1998 to 2-3-1998 and intimation of closure was duly submitted on 15-1-1998. Claim of the abatement has been rejected on the ground that reading of electricity meter was not submitted nor balance of stock at the time of closure. He said that the very issue has come up for consideration before the Tribunal in another case (M/s. Hans Castings Pvt. Ltd.) and the Tribunal as per order No. A/144-45/2000-NB(DB) dated 22-2-2000 in the similar facts and circumstances allowed the abatement as claimed by the assessee. In this context, he read para 9 of the said order which reads as under :-
“9. We have heard the rival submissions. We have also perused the evidence on record and the requirement of the rule. We note that in the first case i.e. closure from 27-5-1998 to 13-6-1998, intimation was sent on 28-6-1998. Intimation is required to be sent either one day prior or on the date of closure. Therefore, in the first case the closure shall be deemed to be from 28-5-98 and abatement will be admissible only for the period from 28-5-1998 to 13-6-1998. In respect of the second claim of abatement for the period 18-6-98 to 4-8-98, we find that the claim will be admissible as it satisfied the requirements of the rule. In so far as abatement for the period from 13-10-1998 to 19-10-1998 is concerned, we note that in counting the numbers, this does not qualify for abatement”.
3. On the other hand, Shri A.K. Jain, learned JDR submitted that the case referred to by him is not applicable to the facts of this case because of the fact that balance of stock, was not furnished by the assessee. He also read the relevant finding given by the Commissioner in his order which reads as under :-
“I also observe that abatement claim is a concession for which genuineness of the claim is to be ascertained in order to prevent the fraud and collusion. In the instant case neither the electric meter reading for the balance stocks have been intimated by the party. As such it is not possible to ascertain whether the unit was closed for seven continuous days or not. It has been held in the case of C.S.T. v. Prabhudayal 1998 (71) STC 1 (SC) : 1998 Supp 1 SCR 583 that the conditions for grant of a concession must be deemed to be mandatory. The same ruling was again confirmed in C.S.T. v. Shiv Deri Niwar Industries 1997 (104) STC 132 (SC)”.
4. In reply Shri R. Santhanam drew my attention to para 2 of the impugned order wherein it was recorded that balance of stock as on 15-1-1998 to 2-3-1998 are given and in support of the stock position photocopy of the RT-12 is being enclosed. He also submitted that there was only procedural lapse and technical nature and substantial benefit should not be denied.
5. I have carefully considered the matter. I find that case law referred to by him has lot of force and is applicable to this case. In the instant case closure from 15-1-1998 to 2-3-1998 was duly intimated on 15-1-1998. Further, stock position though it was not given at the time of intimation but it was submitted on the later date. Substantial benefit could not be denied for procedural lapses, if any, as it was rightly argued by the Counsel. In the facts and circumstances and following the ratio of the decision referred to above, I accept the contention of the assessee and accordingly, appeal is allowed in line with the previous ruling. Ordered accordingly.