TMI Blog2011 (4) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... awal Jt. CDR for Respondent Per: B.S.V. Murthy, The appellants are manufacturer of M.S. Ingots and Billets and had opted for payment of duty on lump-sum basis under the provisions of Rule 96ZO(3) of Central Excise Rules, 1944. Since the capacity of their Furnace was 4 tonnes, the benefit of provisions of Rule 96ZO(3) of the Central Excise Rules, which is applicable only to manufacturer having Furnace capacity of 3 tonnes or below, the monthly lump-sum payment of duty @ Rs.6,66,666/- was determined instead of Rs.5 lakhs applicable under Rule 976ZO(3) of Central Excise Rules. During the period from March, 1998 to March, 2000, the appellant had to close the factory for more than 15 days on many occasions and the appellant paid propor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declare that 'the factory remained closed for a continuous period from' .......... Hrs. on ............ (date) to ........ Hrs on .......(date), and therefore the Commissioner has rejected their claim for abatement. The appellants replied to this letter on 23.8.2005 and this letter was addressed to the Commissioner of Central Excise concerned. In this letter, the appellants discussed the provisions of Rule 96ZO(2) and also cited the details of the letter submitted by them in respect of the period for which they had sought abatement. Further, they also relied upon some Tribunal decisions in support of their submission that the abatement should not be denied based on omissions of technical nature. However, no reply was received to this lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no evidence to show that the appeal submitted by them was returned. However, he drew our attention to the fact that on 13.1.2006, they had submitted an affidavit to the Commissioner (Appeals), wherein it was noted that effort was made to file an appeal in the Commissioner (Appeals) office against the letter dated 1.8.2005, which was not accepted. Further, he also drew our attention to the written submission made before the Commissioner (Appeals) after having appeared for personal hearing on 23.1.2006. In this appeal memo, the appellants had indicated that they were informed by the Joint Commissioner on 1.8.2005 about the rejection of their abatement claim. They also submitted that they had made a representation against the same, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar case. In this case, when a letter was issued, the appellants not only filed appeal before the Commissioner (Appeals) against letter but also made a representation. Unfortunately, contrary to the statutory provisions, someone in the office of the Commissioner (Appeals) decided not to accept this appeal as it is only against a letter and not against order. We find considerable force in the arguments advanced by the learned Counsel that the appellants were placed in a hopeless situation, even though it can be stated that they could have submitted the appeal by the Speed Post. Nevertheless, we find that in the written submissions made before the Commissioner (Appeals) after personal hearing, they had given all these details and further, they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee would have been possible. But the appellants filed an appeal besides representing the letter. The appeal papers have been returned without accepting and their representation has not been replied to. In this situation, it will be gross injustice, if we treat this order as a letter and hold that it has attained finality against the appellants and therefore, take a view that since this letter had attained finality, the appellants have no right to claim abatement. 6.The learned Jt. CDR cited several decisions in support of his contention that the letter is to be treated as an order and therefore, it is to be held that it has attained finality in the absence of an appeal. In the case of Indian Sugar General Engg. Corporation Vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to decide the issue or at least reply to the representation enabling appellants to file an appeal. In this situation, the only option available to the this Tribunal to render justice on the basis of records of the facts and circumstances would be to treat the letter dated 1.8.2005 as not an order but give a direction to the original authority at the appropriate level as per instruction to consider the representation dated 23.8.2005 again and thereafter pass a speaking order as regards the abatement. 8. Since the impugned order in this case has been passed on an appeal filed by the appellants against Order-in-Original passed on 23.8.2005 and the ground for rejection of the abatement claim is a letter dated 1.8.2005 issued by Joi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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