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TMI Blog2017 (12) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... within the condonable period before the Learned Commissioner (Appeals). As service of order to an Advocate who was not representing the case before the Excise Authorities, was not a service on the appellant. 2. With regard to limitation, as the appeal have been dismissed by the first Appellate Court on the ground of limitation, the Learned Counsel explains that the Department served the order dated 25th August, 2010 on one Shri B. M. Sharma, Advocate on 26/08/2010. The said Mr. Sharma was not the Advocate authorized in the concerned proceedings before the Department. The said Mr. Sharma, only on 30/08/2010 handed over the order to the proper person of the appellant company. Thereafter, the appellant company gave the case records and instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions. 4.1 The appellant deposited Rs. 96,00,000/- towards Central Excise duty for 04 Single Track Pouch Packing Machines (MRP Rs. 2.00). Accordingly, a Memorandum No.03/2009-10 dated 13/01/2010 was issued. On 11/01/2010, the appellant intimated vide letter dated 11/01/2010 addressed to the Superintendent, Central Excise, Range-I, Division-V, Ghaziabad with a copy to the Assistant Commissioner for the closer of factory from 14/01/2010 and requested for sealing of all 04 Single Track Pouch Packing Machines, put in to operation. The Superintendent, Central Excise, Range-I, Division-V, Ghaziabad intimated vide his letter C. No.20-CE/R-I/D-V/KPM/22/09/23 dated 15/01/2010 that all 04 Single Track Pouch Packing Machines were sealed on 13/01/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... available seven machines, five more machines are reaching to their factory. Out of new machines so received, they will use 2 machines for packing of Pan Masala/Gutkha having RSP of Rs. 2/- each and all the seven existing machines, are intend to be transferred to their unit-I situated at C-94/1, B. S. Road Industrial Area Ghaziabad. Accordingly, on 09/04/2010, the seal of store room was broken and the above said seven pouch packing machines were taken out and loaded in a truck for transportation to unit-I situated at C-94/1, B. S. Road Industrial Area, Ghaziabad at 14:00 hrs. On the same day, i.e. 09/04/2010, the appellant received 2 machines in the factory. The same were unloaded from the container, taken out from the wooden boxes and hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 04/05/2010, the appellant vide their letter dated 04/05/2010 requested for abatement for the period from 14/01/2010 to 08/04/2010. As they had not produced any notified goods during the month of February, 2010 and March, 2010 and no duty was deposited for the both months, the appellant has not claimed abatement for the months of February, 2010 and March, 2010. 4.10 Appellant has claimed abatement of duty for the period from 14/01/2010 to 08/04/2010 as under:- For period from 14/01/2010 to 31/01/2010 Rs.5574193/- For period from 01/04/2010 to 08/04/2010 Rs.1920000/- Total abatement Rs.7494193/- 5. The Learned Assistant Commissioner was pleased to allow the abatement for the period from 14/01/2010 to 31/01/2010 of Rs. 52,74,193/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 96 ZQ (7) read with condition (f) of CER, 1944, period of closure of one month or more has to be construed to be a continuous period of one month or more and it will not synchronize with calendar month. Accordingly, he prays for allowing the appeal with consequential benefits. 7. The Learned A.R. for Revenue have relied on the impugned order. 8. Having considered the rival contentions, I hold that the Court below have erred in calculating the period of closure which has been defined as continuous period of 15 days or more and in the facts of the present case, admittedly the factory of the appellant was lying closed or out of production for a continuous period of 85 days. Accordingly, I hold that the appellant is entitled to abatement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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