9911796707
TMI Blog2016 (7) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3,60,000/- should have been paid by 05.06.2012 but was paid on 29.06.2012. 2. Revenue is in appeal against the same Order-in-Appeal on the ground that the primary adjudicating authority had correctly confirmed the demand of Rs. 32,40,000/- (Rs.36 lakhs being duty for the entire month minus Rs. 3,60,000/- paid on 29.06.2012) along with interest and penalties in view of the fact that the duty was to be paid for the entire month although the appellant could have claimed abatement for the period the machine did not operate and therefore, the Commissioner (Appeals) was not legally correct in setting aside the impugned demand of Rs. 32,40,000/- and reducing penalty. 3. I have considered the contentions of both sides and perused the Pan Masala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion in Form-2 is to be filed with the jurisdictional Superintendent of Central Excise before the 10th day of the month. The second proviso to Rule 9 enjoins that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AA of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount. 5. For July 2013 the appellant admittedly paid duty on 27.7.2013 instead of by the 5th July 2013. According to the appellant it applied for abatement of excise duty under Rule 10 of the Rules for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of packing machines installed, which the manufacturer intends to operate in its factory for production of notified goods. Rule 7 specifies that the duty payable for a particular month shall be calculated by application of the appropriate rate of duty specified in the notification of the Government to the number of operating packing machines in the factory during the month. Rule 8 enjoins that in case of addition or installation or removal or uninstallation of a packing machine in the factory during the month, the number of operating packing machine for the month shall be taken as the maximum number of packing machines installed on any day during the month. The provisions of Rules 6(4) and 6(5) are also relevant. Sub-rule (4) enacts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the sealing of the 12 machines of the appellant occurred prior to 1.7.2013. The machines were inoperative during 1.7.2013 to 7.7.2013. The machines were unsealed and reinstalled on 8.7.13. This is evident from the abatement order dated 20.9.2013. In the circumstances under the third proviso to Rule 9, the duty was payable by the 5th of August, 2013. Duty was in fact paid on 27th July, 2013. There is therefore no delayed payment of duty warranting levy of interest under Section 11AA of the Act. 10. On the analysis above, the appellant must succeed. The appeal is therefore allowed and the impugned order is set aside but without costs." The ratio of the aforesaid CESTAT order is clearly applicable to the present case and therefore foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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