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2017 (11) TMI 652 - HC - Central ExciseAbatement of duty payable u/s 3A due to Closure of factory - delay in intimation - Whether demand for Central Excise duty for non manufacturing period i.e. closure of factory is justified u/s 3A of the Act when it is contrary and ultra vires to Article 265 read with entry 84 of the Union List to the Constitution of India? - Held that: - no basis was laid even before first authority or the Tribunal and when the act and provisions are made it is not to be presumed ultra vires unless it has been quashed and set aside by the High Court or any High Court or the Supreme Court, in writ jurisdiction - regarding Section 35G it will not be appropriate to held any provision to be unconstitutional because power under section 35G is only to be exercised in substantial question of law arising out of the Central Excise Act and not on any constitutional point - decided against assessee-appellant. Section 10 of the General Clauses Act - Whether Tribunal is justified in denying substantial right of assessee over and above procedural lapse of delayed intimation of closure of factory when it was due to unforeseen circumstances beyond control and under immunity of Section 10 of the General Clauses Act of 1897? - Held that: - when considering the rule there are five conditions which are required to be fulfiled since the assessee is claiming exemption. If one is to claim exemption and non-payment of tax, interpretation of such exemption should be construed and it is in aid to rule. Once the interpretation is found to be proved one has to go by the rule - the rule even if it is construed liberally cannot travel beyond the next working day of the closure either it is Saturday, Sunday and public holiday or any other circumstances where the movement of a person is not possible to reach the office of the Central Government or the respondent namely in a case of curfew or any other exigency, the time can be extended and all documents on record do not show that on the date of intimation of there was curfew in the area which is to be proved by the assessee and not by the department - assessee will be entitled only for the benefit of the next working day not beyond that - decided partly in favor of appellant. Appeal allowed in part.
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