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M/s Kay Pan Sugandha Pvt. Ltd. Versus The Commissioner, Central Excise- Raipur (C.G.) (Vice-Versa)

2016 (7) TMI 556 - CESTAT NEW DELHI

Refund - manufacturing of Gutka - Abatement in case of non-production of goods - closing of the factory - Held that:- The Rule 10 of the Pan Masala Packing Machines Rules specifies that the intimation for closure should be, at least 7 days’ prior to the commencement of the period. The question which arises before us is whether this condition precedent is to be rigidly enforced. - The only objection of the department is that the intimation for closure was not given three working days prior to .....

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ng 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 - Dated:- 30-5-2016 - Ms. Archana Wadhwa, Member (Judicial) and Shri V. Padmanabhan, Member (Technical) Shri Rupesh Kumar, Advocate for the appella .....

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ctory was closed continuously for 16 days from 20.10.2008 to 04.11.2008. The refund was sanctioned by the Assistant Commissioner. Revenue filed an appeal against this refund, considering it as improper and the Commissioner (Appeals) modified the refund order and restricted the refund to the extent of ₹ 30,24,194/-. The Revenue is in appeal before us against the order dated 4/2/2010 contending that the appellant assessee is not entitled to any refund. Separately proceedings were initiated b .....

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acking 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 .....

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uous period of 15 days or more needs to be filed, at least, 7 days prior to the commencement of the said period. This acquires significance since this is a condition precedent for claiming refund of the duty paid in advance, proportionate to the closure period. In the facts of the present case, the appellant assessee s intimation for closure of the factory during the period 20/10/2008 to 4/11/2008 (16 days) was filed with the Assistant Commissioner as well as the Range Superintendent on 14/10/20 .....

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ricting the refund to 15 days (instead of 16 days) and ordered 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 fallin .....

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ala Packing Machines Rules specifies that the intimation for closure should be, at least 7 days prior to the commencement of the period. The question which arises before us is whether this condition precedent is to be rigidly enforced. We find that an identical issue has been considered by this Tribunal in the decision cited by the Ld. Advocate. In the above decision, the Tribunal has held as follows:- The only objection of the department is that the intimation for closure was not given three wo .....

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