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2015 (10) TMI 1040 - HC - Central ExciseDemand of differential duty - Abatement claim - compounded levy scheme - Demand of interest - Held that - Appellant had pressed into service Rule 10 of the PMPM Rules requires the duty calculated on a proportional basis to be abated in case the factory does not produce the notified goods during any continuous period of 15 days in a month. Rule 10 further requires the intimation to that effect to be given to the authorities at least three working days prior to the commencement of the period of closure. Rule 9 requires the monthly duty payable to the authorities to be paid by the fifth day of the same month. There is nothing in Rule 9 to suggest that the failure to pay the duty payable on all the machines upfront by the 5th day of a month would disentitle the Assessee to claim pro rata abatement of duty. The requirement under Rule 10 of giving intimation three days prior to the closure has been complied with by the Assessee. Failure to make the payment of duty on fifth day of every month cannot result in depriving the Assessee of the pro rata abatement of duty which he is in any way entitled to since admittedly in the present case there has been a closure of the factory from 14th to 31st August 2012 and an abatement order has also been passed on 28th August 2012. However, the Assessee would be liable to pay the interest for the period of late deposit of duty. - No substantial question of law arises therefrom. - Decided against Revenue.
Issues:
Appeal against CESTAT order partially setting aside Commissioner's order on duty payable for August 2012, abatement of duty under PMPM Rules, compliance with procedural obligations, liability to pay interest. Analysis: 1. The appeal under Section 35G of the Central Excise Act, 1944 challenged the CESTAT order partially setting aside the Commissioner's order regarding duty payable for August 2012. The CESTAT upheld the requirement for the Assessee to pay interest on the differential duty, as per the show cause notice dated 23rd May 2013. 2. The Respondent Assessee, engaged in Gutka manufacturing, paid central excise duty under the compounded levy scheme as per the Pan Masala Packing Machines (PMPM) Rules, 2008. 3. The Assessee requested sealing of machines in August 2012, with no manufacturing activity from 14th to 31st August 2012. An abatement order was issued on 28th August 2012, paying duty for 13 days on a pro rata basis. 4. The Department issued a show cause notice in May 2013, demanding duty payment for the entire month. The Commissioner confirmed the demand, imposed interest, penalty, and cess amounts. 5. The CESTAT noted the Assessee's entitlement to abatement but highlighted non-compliance with procedural obligations under the PMPM Rules. It referenced previous decisions emphasizing that failure to comply results in liability for interest only. 6. The CESTAT's order was based on the interpretation of PMPM Rules and upheld the Assessee's right to abatement while emphasizing the obligation to pay interest for late duty deposit. 7. The High Court referred to a previous case where it was held that closure for less than 15 days in a month does not disentitle an Assessee to claim abatement. Rule 10 mandates intimation of closure and allows abatement if the factory does not produce goods for 15 consecutive days. 8. The Court concluded that the failure to pay duty upfront by the 5th day of the month does not deprive the Assessee of pro rata abatement entitled during factory closure. The Assessee is liable to pay interest for late duty deposit. 9. The Court dismissed the appeal, stating that no substantial question of law arose from the CESTAT's order, thereby upholding the decision.
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