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2023 (8) TMI 610 - AT - Central ExciseAbatement by way of refund - case of the department is that the duty paid on pro- rata basis is not correct stating that duty for entire month to be deposited first and then go for refund amount of duty for closure period of machine - HELD THAT:- Even though the Rule 9 prescribes that the duty under the scheme should be paid by 5th of the same month but at the same time Rule 10 provides abatement for the machine as not working minimum of 15 days - In the present case as regard the closure of machine for minimum 15 days and procedure for claiming the abatement has been undisputedly followed and is not objected by the department. Therefore the appellant in principle become entitled for abatement even if the appellant have not paid duty in advance by 5th of same month for the days when the machine was not working the duty was not payable in advance, the same shall stand adjusted against the duty not liable to be paid. Therefore this is a clear revenue neutral situation hence, in these circumstances, the demand cannot be raised particularly when the abatement procedure was followed by the appellant and machine was admittedly closed for minimum of 15 days in every month during August, 2011 to March, 2012 therefore, demand of duty is not sustainable. The very same issue has been considered by the Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE VERSUS M/S ANGADPAL INDL. PVT. LTD. [2015 (10) TMI 1844 - SUPREME COURT] wherein the Apex Court has held that the respondent was not supposed to pay any duty, more so, when the entire exercise was revenue neutral. It legitimately claimed the rebate. The appellant are entitled for the abatement and consequently not required to pay any duty during the period machines were not working - the impugned order is set aside - Appeal allowed.
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