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2015 (2) TMI 606 - AT - Central ExciseAbatement under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 - all the requirement for abatement like giving due intimation, getting the machines sealed, giving the due intimation for re-start of production etc had been duly followed - Revenue's case is that the appellants should have paid the duty for the subsequent month in full and should have claimed the abatement separately. Held that:- In none of the impugned orders, it is in dispute that there was a closure of factory for more than 15 days and the required procedure of due intimation of closure, sealing and due intimation of re-opening was followed. In other words, it is not in dispute that the requirements stipulated in Rule 10 of the said Rules were fulfilled. It is also not disputed that the adjustments made were not more than the amounts of duties mandated to be abated as per the said Rule 10. - Rule 10 does not make any stipulation about the abatement having to be claimed by filing an application therefor although it does not imply anything to be contrary either. We find the Rule 9 of the said Rules in one of its provisos stipulates that in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by 20th day of the following month. When seen in the light of this proviso, there is force in the argument of the appellants that when the intention of the Government was that the amount should be refunded, an express provision was made therefore; in the said Rule 10, there is no such provision. - It is quite evident from the foregoing that apart from the Board s circulars dt.30.08.1997 and 15.09.1999, in a series of judicial pronouncements, a consistent approach has been taken to the effect that in case of such adjustment of duty which is mandatorily required to be abated (as has been done in these cases), Revenue cannot insist upon recovery of the amount so adjusted - Decided in favour of assessee.
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