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2023 (6) TMI 493 - AT - Central ExciseBenefit of abatement under Rule 10 of Chewing Tobacco and Un-manufactured Tobacco Packing Machine (Determination of Capacity and Collection of Duty) Rules, 2010 - it is alleged that abatement under rule 10 of the 2010 Rules cannot be claimed suo motu for the reason that the appellant was required to first pay the entire amount determined and then claim abatement - whether the appellant could suo motu claim abatement and this issue was decided by the Tribunal in favour of the appellant? - HELD THAT:- On a careful perusal of the order dated October 24, 2017 passed by the Tribunal, there is no manner of doubt that the matter had been remitted to the Principal Commissioner to only determine the number of days the factory of the appellant remained closed each month. The period, so determined, was then required to be dealt with in accordance with the provisions of rule 10 of the 2010 Rules and paragraph 10 of the order. If that be so, there is no manner of doubt that all that was required to be determined by the Principal Commissioner was whether the factory of the appellant remained closed for a minimum period of fifteen continuous days each month. The Principal Commissioner proceeded to examine this issue and came to a conclusion that the factory of the appellant remained closed for a minimum period of fifteen continuous days each month. This finding of the Principal Commissioner is based on the orders passed regarding sealing and unsealing of the factory of the appellant by the officers of the Department and this is also in conformity with the factual position contained in Annexure ‘A’ to the show cause notice. The finding of the Principal Commissioner has not been assailed by the Department also and rightly so because it is based on the factual position. Such being the position, it has to be held that the appellant was justified in claiming suo motu rebate under rule 10 of the 2010 Rules. The order dated January 29, 2019 passed by the Principal Commissioner cannot, therefore, be sustained and is set aside - appeal allowed.
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