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TMI Blog2015 (8) TMI 495X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 31-12-2009 In para 4(iv) - ...unit was closed and sealed by the department on 19-11-2008 opened on 13-1-2009, again closed on 24-1-2009 and opened on 3-3-2009 E/598/10- Mum 41666 No. AKP/135/NSK/2009 dated 31-12-2009 In para 4(iv) -... unit was closed and sealed by the department from 1-4-2009 to 16-4-2009 thereafter again closed from 30-4-2009 to 4-6-2009 E/599/10- Mum 80646 No. AKP/137/NSK/2009 dated 31-12-2009 In para 4(iv) - ...unit was closed and sealed by the department on 24-1-2009, opened on 3-3-2009 2. The fact of the case is that the respondent filed refund claim of duty attributed to the period during which the factory was closed in terms of Notification No. 30/2008-C.E. (N.T.), dated 1-7-2008. The responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous period of 15 days or more for the purpose of abatement should also be considered only when this period is falling in a particular month. Since in the present case, a continuous period of 15 days or more is spread into two or more months, it does not qualify for the abatement under the Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 and, therefore, the respondent is not entitled for the consequential refund. 4. None appeared on behalf of the respondent. 5. I have carefully considered the submissions made by the learned AR and perused the record. The abatement is provided under Rule 10 of the Pan Masala Packing Machine (Capacity Determination and Calculation of Duty) Rules, 2008, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in case the factory did not produce the notified goods during any continuous period of 15 days or more, the duty calculated on a proportionate basis shall be abated in respect of such period. In the said Rule there is no mention that the period of 15 days or more should fall under a particular calendar month. Therefore, as per the plain reading of this Rule, the only requirement is that the period of 15 days or more should be a continuous period. The contention of the Revenue is contrary to the plain language of Rule 10. The learned Commissioner (Appeals) has given elaborate findings interpreting Rule 10 which is reproduced below :- "6. I have gone through the records of the case, submissions, both written and oral. The OIO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kuber Silk Mills Pvt. Ltd. v. CCE, Hyderabad reported at 2001 (137) E.L.T. 951 (Tri. - Chennai). Following ratio of both the decisions, I condone the delay and proceed to decide the appeal on merit. 7. The issue involved in this case is whether continuous period of 15 days or more available for abatement of duty as per Rule 10 of said Rules is confined to a month only or it can spread over to the succeeding and/or preceeding month. For ease of reference, Rule 10 of said Rules is reproduced below :- RULE 10. Abatement in case of non-production of goods. - In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting from any day in a month and ending on any day in the same or another month. On specific request made by the appellant, the Commissioner, Central Excise, Nashik vide letter F.No. V(Gen)27-126/TB/08-09/Pt.l dated 1-4-2009 has clarified that "any continuous period of 15 days or more" used in Rule 10 of said Rules, cannot be unduly restricted by interpreting that the continuous closure has to be confined within a month itself and cannot be spread over to the next month. This decision or order or clarification of Commissioner of Central Excise, Nashik has not been overruled by any authority so far. Under the circumstances, I hold that abatement cannot be denied on the ground that closure of the unit for "any continuous period of 15 days or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are entitled for abatement for February 2009. However there is no case of refund for the month as no duty has been paid for the said month. Duty has been paid for the month of March 2009. The appellant is entitled for refund of duty for those closed days during the month of March 2009 for which abatement is admissible. Out of period of admissible abatement, the closure period during the month of March 2009 is 20 days i.e. from 1-3-2009 (2 days) and from 14-3-2009 to 31-3-2009 (18 days). I, therefore, hold that the unit has rightly filed the refund claim as they are entitled to it. However, DC has sanctioned refund only for 18 days of later period of the month and rejected refund for 2 days of beginning of the month, which is incorrect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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