JUDGMENT
Gowri Shanker, Member (Technical)
1. The application is for waiver of deposit of duty of Rs. 8.88 lakhs and penalty of equivalent amount.
2. The applicant is a textile processor and in the capacity of which stenter was fixed in accordance with the regulations issued in this behalf. On 13.12.1998, the applicant made two applications to the Assistant Commissioner (which the latter received on 14.12.1998) intimating closure of its stenter and two float dryer machines with effect from the midnight of 15.12.1998 till 31.1.1999. The stenter and the float dryer machines remain closed till 28.2.1999. The applicant claimed abatement of the duty payable during this period. The Commissioner passed order allowing abatement for this stenter and the float dryer machines from 22.12.1998 to 31.12.1998 observing that the officers have sealed on 26.12.1998. The assessee has filed an appeal against this order disallowing the abatement from 16.12.1998 to 22.12.1998 (appeal E/2646/00). No stay application has been filed, as there is no demand for duty. The applicant did not pay duty for the period from 16.12.1998 to 28.2.1999.
3. The notice issued to the applicant proposed recovery of duty and imposition of penalty on the ground that duty had not been paid within the stipulated time (the 5th of the next month). The assessee’s defence was that duty was not required to be paid in advance for the period exceeding one month. Since the stenter was closed from 16.12.1998 to 28.2.1999 the requirement was satisfied. In the order impugned before us, the Commissioner does not agree. He holds that there is no abatement granted for the period prior to 22.12.1998. Hence the demand.
4. The contention of the counsel for the applicant is that it had complied with the requirements contained in Sub-rule (7) of Rule 96ZQ. It had given notice in writing at three days prior to the closure and had not cleared any fabrics during the period. The departmental authorities chose to delay the sealing, which is a factor beyond the assessee’s control. He also points out that although the stenter was sealed on 26.12.1998, the Commissioner has granted abatement from 22.12.1998.
5. The departmental representative says that the rule requires that the stenter to be sealed. No doubt, this is true. However, if the rules provided, as they do, that an assessee is entitled to claim abatement if he gives three days notice, it appears to us that a duty is cast on the department to ensure that the stenter is sealed within this period. Not to do so would in effect amount to rendering Clause (b) of Sub-rule (7) permitting abatement on three days notice meaningless.
6. In this prima facie view of the matter, we waive deposit of the duty and penalty and stay their recovery.
7. This appeal to be tagged with appeal E/2646/00 for hearing.