TMI Blog2023 (9) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... even against the impugned order and the demand was set aside holding that It is already observed that the expression in Rule 10 are clear that the manufacturer shall calculate the duty by reducing amount on a proportionate basis in respect of non-production of goods. From the above Tribunal s order, it can be seen that the Tribunal dealing with the same issue even against the impugned order for the portion of demand confirmed, the Tribunal has set aside the demand and allowed the appeal of the respondent. Therefore, there is no substance in the revenue s appeal. Appeal of Revenue dismissed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C L MAHAR, MEMBER (TECHNICAL) Shri R. K. Agarwal, Superintendent (AR) for the Appellant Shri Devashish K Trivedi, Advocate for the Respondent ORDER The issue involved in present appeal filed by the revenue is that in the fact that in the month of December 2011 the production of a new retail sale price was done from 28.12.2011 to 31.12.2011, whether the duty for the entire month has to be paid or duty on pro-rata basis only for four days, when the production has taken place. 2. Shri R.K Agrawal, learned Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to suo motu avail the benefit of abatement of duty in respect of non-production of the notified goods for a continuous period of 15 days or more under Rule 10 of the said Rules 2010 as contended by the Appellants or the manufacturer is required to file application for seeking abatement, subject to the procedure of grant of refund as per provision of Section 11B of the Act, 1944 as held by the Adjudicating authority. 6. The learned Special Counsel fairly submitted that even the issue is covered in favour of the Appellants in the case of Thakkar Tobacco Products Pvt. Ltd. Others (supra), but, the Bench has not considered certain legal provisions in proper manner and the impugned orders are liable to be upheld. For the purpose of proper appreciation of the case, the relevant portion of the decision of the Tribunal in the case of Thakkar Tobacco Products Pvt. Ltd. Others (supra) are reproduced below:- 5. Extensively heard the arguments and contentions of both sides. At the very outset, it needs to be recorded that in none of the impugned orders, it in dispute that there was a closure of factory for more than 15 days and the required procedure of due intimation of closu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board vide Circular No.331/47/97-CX, dt.30.08.1997, in Para 4(e) observed as under:- Rule 96ZO has been amended to allow abatement of duty, under(e) sub-Section (3) of Section 3A of the Central Excise Act, 1944, for the induction furnace units which remain closed for seven or more days. If an induction furnace unit operating under section 3A is continuously closed for not less than 15 days, then pre-payment of duty for the closure period is not to be insisted upon provided the unit has fulfilled all the conditions stated in sub-rule 2 of rule 96ZO. However, the above claim should be subject to verification by the jurisdictional Assistant Commissioner of Central Excise. If such a closure is for a reasonably long period, periodic verification about the continued closure should be done by the jurisdictional Assistant Commissioner of Central Excise. Our attention was also drawn to CBEC Circular No.485/51/, d.15.09.1999, which was issued in relation to Rule 96ZQ as it existed prior to 28.02.1999. 2. The Board has examined the matter. Under rule 96ZQ as it existed prior to 28-2-1999, the prerequisites for grant of abatement on closure of stenter were the stenter shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. I have carefully considered the facts of the case. There is no dispute on the facts that during the period from 1-8-2000 to 15-8-2000. Stenter with 4 chambers remained closed and appellants were eligible for abatement. The question whether they should have paid Rs. 7 lakhs and taken refund thereafter is basically a question of procedure. I do not think that the substantial benefit should be denied on this ground. It needs to be pointed out that the CESTAT held this view inspite of the fact that the Rule 96ZQ (7)(e) specifically required the payment of duty for the entire period of the month as is evident from the language of that Rule [96ZQ(7)(e)], which is reproduced below:- When the claim for abatement by the independent processor is for a period of less than one month, he shall be required to pay the duty, as applicable, for the entire period of the month and may subsequently seek such claim after payment of such duty . Needless to say that such a requirement is conspicuous by its absence in Rule 10 of the said Rules. Earlier also, the Tribunal in the case of Balkrishna Textile Ltd Vs CCE Ahmedabad - 2003 (161) ELT 740 (Tri-Del), in effect held as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements, a consistent approach has been taken to the effect that in case of such adjustment of duty which is mandatorily required to be abated (as has been done in these cases), Revenue cannot insist upon recovery of the amount so adjusted. 7. Now, we have to examine the submission of the learned Special Counsel for the Revenue in detail. The scheme of Rules 2010, in brief, is that in terms of sub-rule (1) of Rule 6 of Rules 2010, the manufacturer shall file declaration with details as specified therein to the Department. Sub-rule (2) of Rule 6 provides that the Deputy Commissioner or the Assistant Commissioner of Central Excise, shall after making such enquiry, approve the declaration and pass an order concerning annual capacity of production of the factory. Rule 7 of the Rules 2010, provides that the duty payable for a particular month shall be calculated by application of the proper rate of duty specified in the notification of the Government of India, in the Ministry of Finance, No.16/2010-CE, dt.27.02.2010 to the number of packing machines in the factory during the month. Rule 9 of the said Rules 2010, provides the manner and the payment of duty and interest. The monthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 this 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 Central Excise, at least three working days prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for the said period under the physical supervision of Superintendent of Central Excise, in the manner that the packing machines so sealed 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: Provided further that when the manufacturer intends to restart his production of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les 2010. In our considered view, the language of Rule 10, being clear and unambiguous, that the manufacturer is entitled to calculate the duty by reducing the amount on proportionate basis in case the factory did not produce the goods during any continuous period of 15 days or more, provided an intimation was filed to the Assistant Commissioner/ Deputy Commissioner of Central Excise. It is noticed that the Hon ble Allahabad High Court in the case of Steel Industries of Hindustan Industrial Area (supra) held that the abatement of the closure period, depositing of duty was not a pre-condition for claiming it under Rule 96ZQ of the erstwhile Central Excise Rules, 1944, which was discussed by the Tribunal in the case of Thakkar Tobacco Products Pvt.Ltd. Others (supra). 13. The learned Special Counsel further submits that it is not the case of self-assessment procedure. In other words, in terms of Rule 6(2), the Deputy Commissioner or the Assistant Commissioner of Central Excise shall pass an order determining the Annual Capacity of Production for payment of duty on monthly basis, which may be treated as an assessment order, and therefore, unless it is challenged, the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to determination of Annual Capacity of Production under Rule 6(2) of the said Rules 2010 and therefore, there is no question of challenging of order issued under Rule 6(2) of the said Rules 2010, while availing abatement under Rule 10. It is already observed that the expression in Rule 10 are clear that the manufacturer shall calculate the duty by reducing amount on a proportionate basis in respect of non-production of goods. Hence, the said case laws relied by the learned Special Counsel would not be applicable in the present case. 14. The other contention of the learned Special Counsel is that Rule 2010 was framed by the Central Government to safeguard the interest of the Revenue in respect of the evasion of duty. The Hon ble Supreme Court in the case of Doaba Steel Rolling Mills (supra) observed that the provisions authorized the Central Government to notify certain goods for levy and collection of duty of excise in such goods, in accordance with the provisions of the said Section, having regard to the extent of evasion of duty as also other relevant factors. In that case, the question for consideration was whether Rule 5 of Hot Re-rolling Steel Mills Annual Capac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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