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2019 (1) TMI 901 - AT - Central ExciseAbatement of duty - manufacture of Chewing Tobacco - sealing of machinery/machinery not functioning for part of the month - duty to be paid for full month or part thereof - Rule 10 of the CTD Rules - entitlement for suo moto abatement for the period - Held that:- The ruling in the case of Shiv Shakti Agrifood Pvt. Ltd. [2018 (4) TMI 764 - CESTAT NEW DELHI] is per incuriam as the said ruling has been passed without taking notice of the provisions of the Rule 9 Fourth Proviso and also the earlier precedent judgments of this Tribunal and it was held that Other than Rule 10, there is no provision for charging duty on pro-rata basis in respect of machines which, for the reason of being sealed, were operating only during part of the month. In a subsequent order under similar facts and circumstances with the same assessee Single Member Bench of this Tribunal in M/S ARORA TOBACCO PVT. LTD. VERSUS CCE, JAIPUR-I [2018 (5) TMI 1199 - CESTAT NEW DELHI], has followed the earlier ruling of SA Freshner Pvt. Ltd. [2018 (3) TMI 18 - CESTAT NEW DELHI] and have held accordingly in favour of this appellant assessee by holding that it cannot be said that the appellant is not entitled for the refund/abatement under 4th Proviso to Rule 9 of the CTD Rules. Suo-moto entitlement of abatement - Held that:- Hon’ble Gujrat High Court in the case of Thakkar Tobacco products Pvt. Ltd. [2015 (2) TMI 606 - CESTAT AHMEDABAD] held in favour of the assessee and the said ruling has been accepted by the Revenue as is evident from Circular No. 1036/2/2018 dated 16th February 2018. Appeal allowed - decided in favor of appellant.
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