TMI Blog2019 (7) TMI 1805X X X X Extracts X X X X X X X X Extracts X X X X ..... T] it is held that the impugned order is bad as the same has been passed beyond the scope of show cause notice. Further, the appellant has proved that they are eligible for abatement under Section 3A(3) of the Central Excise Act, 1944 read with Rule 96ZO(3) of Central Excise Rules, 1944. The amendment in Rule 96ZO(3) of Central Excise Rules, 1944. Further, the restriction under sub-section (3) of Section 3A has been removed w.e.f. 01.09.1997 vide Notification No. 44/97-CE dt.30.08.1997 and the disputed period in this case is from 14.11.1998 to 14.12.1998 and therefore, the restriction under Rule 96ZO(3) is not applicable and therefore, the appellants are eligible for abatement under Section 3A(3) of the Central Excise Act, 1944. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.1998. On 18.01.1999, appellant has filed an abatement claim for ₹ 9,00,000/- in connection with proportionate duty paid for the above period. Department entertained the view that the appellants are not entitled for the abatement as they do not fulfil the conditions for abatement as per the Rules. On this allegation, a show cause notice dated 27.05.1999 was issued proposing denial of abatement in the duty alleging that conditions prescribed under Rule 96ZO(2) of Central Excise Rules, 1944 were not fulfilled. The appellant submitted their reply explaining how the conditions are fulfilled and requested for the abatement in the duty. By following due process, the adjudicating authority vide the impugned order dated 26.11.2008 denied t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sy it is relevant to reproduce the extract of Section 3A(3) 3A(4) which are as follows: (3) The duty of excise on notified goods shall be levied, at such rate as the Central Government may be notification in the Official Gazette specify, and collected in such manner as may be prescribed. Provided that, where a factory producing notified goods did not produce the notified goods during any continuous period of not less than seven days, duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed. (4) Where an assessee claims that the actual production of notified goods in his factory is lower than the production determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his factory so desires, he may, from the 1st day of September, 1997 to the 31st day of March, 1998 or any other financial year, as the case may be, pay a sum of rupees five lakhs per month in two equal installments, the first installment latest by the 15th day of each month and the second installment latest by the last day of each month, and the amounts so paid shall be deemed to be full and final discharge of his duty liability for the period from the 1st day of September, 1997 to the 31st day of March, 1998, or any other financial year, as the case may be, subject to the condition that the manufacturer shall not avail of the benefit, if any, under sub-section (4) of the section 3A of the Central Excise Act, 1944 (1 of 1944) 5. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days being Saturday and Sunday and the intimation made on 16.11.1998 was sufficient compliance of the conditions laid down under Rule 96ZO(2). For this submission, he relied upon the decision in the case of Young Steel Pvt Ltd v. CCE, 2018 (360) ELT 799 (Raj.). 7. On the other hand, learned AR defends the impugned order. After considering the submissions of the parties, we find that the impugned order in the first instance has travelled beyond the show cause notice. The impugned order has been passed denying the abatement stating that the duty abatement was restricted under Rule 96ZO(3) of the Central Excise Rules which was never the allegation in the show cause notice and therefore, by relying upon the decision of the Hon ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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