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2015 (11) TMI 363 - CESTAT NEW DELHI

2015 (11) TMI 363 - CESTAT NEW DELHI - TMI - Denial of abatement claim under the Pan Masala Packaging Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Held that:- Rule 10 does not use the word single continuous period. It says any continuous period of fifteen days or more. Abatement can be claimed for the period when there is no production only when duty has been paid. If duty is not paid there is no question of granting any abatement. The appellant had paid the duty for th .....

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as accepted the same. To claim abatement, Rule 10 lays down only two conditions. First, that there is no production during any continuous period of fifteen days or more. Second, that the manufacturer files an intimation to this effect to the Deputy Commissioner or Assistant Commissioner with copy to Superintendent at least three working days prior to the commencement of the said closure period. There is no condition imposed with regard to date of payment of duty.

If the manufacturer .....

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unsustainable. - rejection of claim of abatement is totally unjustified. The impugned order is set aside - Decided in favour of assessee. - Appeal No. E/54091/2014-Ex-SM - Final Order No.52829/2015 - Dated:- 10-9-2015 - Smt. Sulekha Beevi C.S., Member (Judicial) For the Petitioner : Shri S.K.Pandey, Advocate For the Respondent: Shri Devender Singh, DR ORDER Per: Sulekha Beevi C.S. The above appeal is filed challenging the order which denied the abatement of ₹ 33,87,097/- sanctioned by the .....

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effect from 16.4.2013. The Range Superintendent sealed all the five pouch packing machines under regular panchnama dated 15/16.04.2013. Thereafter on 10.5.2013 and 13.5.2013, the appellant requested the Assistant Commissioner for unsealing of the five pouch packing machines in order to restart production. As per direction of the Assistant Commissioner, the Range Superintendent unsealed the five machines on 15.5.2013. There was no production of pan masala in the factory for the period 16.4.2013 .....

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plication on 8.5.2013 for abatement of duty for the period 16.4.2013 to 30.4.2013. The same was allowed. As per Rule 9, the appellant is bound to pay duty before 5th of every month. After unsealing of the machines, appellant paid duty and interest for the month of May, 2013 with delay on 16.5.2013. The same was accepted by department. Thereafter appellant filed application for abatement of duty paid for the period 1.5.2013 to 15.5.2013 during which period there was no production in the factory. .....

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ing abatement. That both these conditions having been satisfied in the case of appellant. The denial of abatement is unjustified. 4. Against this, learned DR supported the impugned order and urged that the Commissioner (Appeals) has rightly denied abatement. According to Revenue, the claim of abatement is not sustainable for three reasons. Firstly, the application for abatement is in regard to above period from 01.05.2013 to 15.5.2013. The production was closed actually from 16.4.2013 upto 15.05 .....

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d. Thirdly, Rule 10 provides that the assessee has to give intimation to the department at least seven working days prior to the closure of production. That appellant did not comply with this condition. 5. Heard both sides and perused the records carefully. For better appreciation the relevant provisions are notice as under: 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 .....

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ctory for the said period under the physical supervision of Superintendent of Central Excise, in the manner that these cannot be operated during the said period : Provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and no removal of notified goods shall be effected by the manufacturer except that notified goods already produced before the commencement of said period may be removed within first two days of the said period : Pro .....

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tion for the period 16.4.2013 to 15.05.2013. The appellant had paid duty of ₹ 70,00,000/- for the month of April before 5th April. After closure of production, on 8.05.2013 appellant filed abatement of proportionate duty for the period 16.04.2013 to 30.4.2013. This was allowed. The dispute is with regard to the second application filed for the period 01.05.2013 to 15.05.2013. It is the case of Revenue that as the production was closed from 16.04.2013 to 15.05.2013 continuously, the claim p .....

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e month of April, he filed application claiming abatement from 16.4.2013 to 30.4.2013. This was filed on 08.05.2013. At that time the closure was continuing and further the duty of May was not yet paid. It is impossible for the appellant to include the closure period in May in that application. He paid duty and thereafter claimed the abatement after starting production. The duty being under the compounded levy scheme the appellant has to pay the entire duty for the whole month of May, if he wish .....

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