TMI Blog2012 (10) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibits us from doing so. Therefore, same order is upheld. - E/960/2011 - - - Dated:- 4-9-2012 - MR.M.V. RAVINDRAN, AND MR. B.S.V. MURTHY, JJ. Represented by: Ms. Avani Mehta, Adv.: for Assessee. Shri B.V. Joshi, A.R.: for the Revenue. Per: M.V. Ravindran: This Stay Petition is filed for waiver of pre-deposit of duty of Rs.6,40,000/- 2. After hearing both sides for some time on the Stay Petition, we find that the appeal itself could be disposed of at this juncture and hence after dismissing the Stay Petition filed by the assessee, we take up the appeal for disposal. 3. After perusal of the records, we find that the issue involved in this case is regarding non-granting of abatement to the appellant. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued. The original adjudicating authority took up both the matters and vide a common order dt.19.03.2004 rejected the abatement claim and confirmed the demand of duty on the ground that in terms of the provisions of Clause e of sub-rule 7 of Rule 96ZQ of Central Excise Rules, 1944, the applicant is first required to deposit the duty for the entire period and then claim the refund of the same. On an appeal against the above order, Commissioner (Appeals) upheld the same. He, however, reduced the penalty amount to Rs.50,000/-. The said order is impugned before us. After going through the impugned order, we find that the Commissioner (Appeals) has observed that the stenter was closed for 22 days and during that period, no production/m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty for the entire period of one month and may subsequently seek such abatement claim after payment of duty. As such, with the introduction of the above clause, the clarification as contained in Board s circular would not be applicable. The appellant s reference and repeated reliance on the said circular in their grounds of appeal is of no avail to them. It is also seen that the issue stands decided by the Tribunal s judgment in the case of Mahalakshmi Enterprises Vs CCE New Delhi 2002 (140) ELT 143. While dealing with the identical abatement claim for the period after the amendment, Tribunal observed as under in para 3 of their judgment. 3. As far as the claim for abatement for the period 19-4-99 to 26-4-99, 8-5-99 to 17-5-99 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erfered with. However, by following the Tribunal s judgment in the case of Mahalakshmi Enterprises and by adopting the same course of action, we grant liberty to the appellant to first deposit the amount in question and claim the refund of the same subsequently, in which case the lower authorities would reconsider their claim for abatement. As regards penalty of Rs.50,000/- imposed upon the appellant, we note that the entire issue is of legal interpretation of provisions of Rule 96ZQ(7) and the admissibility of the appellant s claim of abatement. There is no mis-statement, suppression and malafide on the point of appellant so as to invoke penal provisions against them. Accordingly, the penalty of Rs.50,000/- is set aside. Appeal is disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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