TMI Blog2016 (7) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... on three working days prior to commencement of closure, is that the officers have enough time to seal the machines in the manner as prescribed in this rule, and this purpose has been achieved, as the sealing of the machines in the manner prescribed was done on 14-1-2013 in pursuance of the orders given by the Assistant Commissioner on 11-1-2013, the Conditions of the intimation of closure being given at least three working days’ prior to closure lose its significance and the benefit of abatement cannot be denied on the ground that intimation of less than three working days’ prior to closure. - Refund allowed - Decided in favor of assessee. - E/1048/2010-EX[DB], E/1716/2010-EX-[DB], E/1747/2010-EX[DB] - Final Order No. 52048 to 52050/2016 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2010 passed by the Commissioner (appeals)restricting the refund to the extent of ₹ 30,21,194/-. 2. The whole dispute centres around Rule 10 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 which is reproduced below:- Abatement in case of non-production of goods. in case of 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 such period provided the manufacturer of such goods files an intimation to the effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise as the case may be, with a copy to the Superintendent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for deduction of ₹ 3024194/-from the refund amount. 3. Ld. Advocate appearing for the appellant assessee argued for sanction of full refund and cited the decision of CESAT in Rajat Industries Pvt. Ltd. Versus Commissioner of C. Ex. S.T., Kanpur 2015 (320) E.L.T. 146 (Tri-Del). He further submitted that this decision has been upheld by the Hon ble High Court of Allahabad. He accordingly prayed that the notice period falling short by one day should be ignored and refund should be ordered to be sanctioned in full. 4. Ld. DR on the other hand argued that 7 days notice prior to the commencement of the closure period is a mandatory requirement for grant of refund under the Pan Masala Packing Machines Rules and cannot be waived. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erms of the Rule 10 of the abatement of duty for the closure cannot be denied. We, therefore, hold that the impugned order is not correct. The same is set aside. The appeal as well as stay application is allowed. The miscellaneous application also stands disposed of as above. 7. The decision has also been approved by the Hon ble High Court of Allahabad. Since no argument other than the technical deficiency of the notice period in the notification has been brought to our notice, we are inclined to take the view approved by the Hon ble High Court of Allahabad that substantial compliance of Rule 10 has been made in this case. In the light of the aforesaid discussions, we are inclined to uphold the section of refund in full by the Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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