TMI Blog2015 (2) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... plication therefor although it does not imply anything to be contrary either. We find the Rule 9 of the said Rules in one of its provisos stipulates that in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by 20th day of the following month. When seen in the light of this proviso, there is force in the argument of the appellants that when the intention of the Government was that the amount should be refunded, an express provision was made therefore; in the said Rule 10, there is no such provision. - It is quite evident from the foregoing that apart from the Board s circulars dt.30.08.1997 and 15.09.1999, in a series of judicial pronouncements, a consistent approach has been taken to the effect that in case of such adjustment of duty which is mandatorily required to be abated (as has been done in these cases), Revenue cannot insist upon recovery of the amount so adjusted - Decided in favour of assessee. - Appeal No.E/12449,12450,14001-14003,14022-14024/2013 - Order No. A/10123-10130/2015 dated 06.02.2015 - Dated:- 6-2-2015 - Mr. P. K. Das and Mr. R. K. Singh,JJ. For the Appellants : Shri V. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also stated that the abatement orders, being in the nature of refund, are required to be subjected to the same administrative procedure of pre and post audit. They cited the judgments of CESTAT in the case of CCE Lucknow Vs K.P. Pan Products Pvt. Ltd 2013 (288) ELT 478 (Tri-Del) and in the case of Shiv Shakti Agrifood Pvt. Ltd. Vs CCE Delhi-I 2012-TIOL-1219-CESTAT-DEL. 5. Extensively heard the arguments and contentions of both sides. At the very outset, it needs to be recorded that in none of the impugned orders, it in dispute that there was a closure of factory for more than 15 days and the required procedure of due intimation of closure, sealing and due intimation of re-opening was followed. In other words, it is not in dispute that the requirements stipulated in Rule 10 of the said Rules were fulfilled. It is also not disputed that the adjustments made were not more than the amounts of duties mandated to be abated as per the said Rule 10. 6. We find that the said Rule 10 does not make any stipulation about the abatement having to be claimed by filing an application therefor although it does not imply anything to be contrary either. We find the Rule 9 of the said Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the above claim should be subject to verification by the jurisdictional Assistant Commissioner of Central Excise. If such a closure is for a reasonably long period, periodic verification about the continued closure should be done by the jurisdictional Assistant Commissioner of Central Excise. Our attention was also drawn to CBEC Circular No.485/51/, d.15.09.1999, which was issued in relation to Rule 96ZQ as it existed prior to 28.02.1999. 2. The Board has examined the matter. Under rule 96ZQ as it existed prior to 28-2-1999, the prerequisites for grant of abatement on closure of stenter were the stenter should have been completely closed for a continuous period of not less than 7 days and the processor should give at least 3 days notice, before closure, to the Jurisdictional Deputy/Assistant Commissioner. On receipt of the notice, the stenter was required to be sealed in such a manner as prescribed by the Commissioner. If these conditions were satisfied, then the processor was eligible for abatement. Where the stenter was closed as on 16-12-1998 itself, the question of 3 days advance notice for closure did not arise. In that case, the stenter should have been seale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the entire period of the month as is evident from the language of that Rule [96ZQ(7)(e)], which is reproduced below:- When the claim for abatement by the independent processor is for a period of less than one month, he shall be required to pay the duty, as applicable, for the entire period of the month and may subsequently seek such claim after payment of such duty . Needless to say that such a requirement is conspicuous by its absence in Rule 10 of the said Rules. Earlier also, the Tribunal in the case of Balkrishna Textile Ltd Vs CCE Ahmedabad 2003 (161) ELT 740 (Tri-Del), in effect held as under:- It is clarified in the circular that where independent processor was eligible for abatement, it should be granted to him whether he has paid the duty first or did not pay the duty in anticipation of the order of abatement. Though Rule 96ZQ did not contain any specific provision in this regard, there was no specific provision to deny it either . The Board, therefore, decided that the Commissioner should decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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