TMI Blog2017 (5) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the notification dated 1.7.2008 on 29.6.2008. Therefore, the principle lex non cogit ad impossibiia, is applicable to the facts of the case - rejection of claim of abatement not sustainable. Scope of SCN - The Commissioner in the impugned order has gone beyond the scope of the SCN - Held that: - the observations of the ld. Commissioner (Appeals) are only on assumption and presumption therefore, the impugned order deserves no merit and beyond the scope of SCN. Appeal allowed - decided in favor of appellant. - E/465/2010-Ex(DB) with E/Misc/51659/2016, E/426/2012-Ex(DB) - Final Order No. 52727-52728/2017 - Dated:- 23-2-2017 - Mr.Ashok Jindal, Member (Judicial) and Mr.V.Padmanabhan, Member (Technical) Shri C.Harishankar, Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and later, the signed copy, which was identical to the earlier unsigned copy was given. On 2.7.2008, the appellant s factory was again visited, and panchnama was drawn nothing that it was closed. On 10.7.2008, the appellant filed declaration as required under the Rules, intimating that it would commence operations on 16.7.2008 using 10 machines, 7 for manufacturing gutka and for pan masala. On 14.7.2008, 7 machines were desealed for repair/upgradation and resealed, under panchnama. On 15.7.2008, 3 machines were desealed for repair/upgradation and resealed under panchnama. The appellant intimated that they wanted to commence production w.e.f.16.7.2008 using its 10 repaired/upgraded machines and requested accordingly its factory be desealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any allegation in the show cause notice which had been issued to the appellant and he has gone beyond the scope of the show cause notice. He further submits that the Commissioner (Appeals) in his order has observed that the copy of the letter dated 29.6.2008 intimating the closure of the factory w.e.f.30.6.2008 did not disclose clearly that they received the letter on 1.7.2008. 5. It is his submission that that the figure 1 in the stamp dated 1.7.08 was not visible only because the file had been punched through the said number. This, moreover, was never an issue before any of the authorities below. He further submits that the two copies of the panchnama dated 1.7.2008 were identical, word-to-word. It was only that only one copy did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce from 1.7.2008. Rule 10 of the Notification is reproduced below: 10. Abatement in case of non-production of goods. - In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of such goods files an intimation to this effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, at least seven days prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed as under: 32 .There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment. 9. Further in the case of Binani Zinc Ltd. (supra), the Hon‟ble Supreme Court has observed as under: 35. It is also well settled principle of law that a stattue does not envisage doing anything which is impossible to be done. Lex non cogit ad impossibiia gausa ommiss gausa ommiss is a well known principle. It would be absurd to suggest that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arify the position, the Range Officer, vide letter dated 03.07.2008, stated that as on today the unit is closed as intimated by the manufacturer . Moreover, the Panchnama dated 02.07.2008 also stated that the factory was closed. It was difficult to understand how the officers signing these documents were so forgetful that the machines had been sealed under Panchnama on01.07.2008. This indicated that the unit was not closed continuously for 15 days. 12. We find the copy produced before us and it was stamped where the figure 1 in the stamp was mentioned, therefore, observations of the Commissioner (Appeals) are on assumption and presumption that the panchnama was not drawn on 01.07.2008. Further Annexure C clearly shows that the panchnma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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