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TMI Blog2023 (9) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... r the days when the production was closed. Therefore, the learned Commissioner has wrongly dropped the demand. 3. Shri Devashish K Trivedi, Learned Counsel, appearing on behalf of the respondent submits that this issue is no longer res-Integra as the identical issue even against the same impugned order, this Tribunal has set aside the demand and allowed the appeal in Order No. A/11068-11702/2015 dated 22.07.2015 which has been accepted by the department as no further appeal was filed either in the High Court or the Supreme Court. Therefore, following the said Tribunal order the Revenue's appeal is not maintainable. 4. We have carefully considered the submission made by both the sides and perused the record. We find that it is not the case of the department that the appellant is liable to pay duty for the days, when the production was not taking place. But the contention of the department is that appellant was supposed to pay duty for the entire month of December 2011. Thereafter, they should have claimed abatement by filing a refund claim. This shows that department is in agreement that for the closer days of the production duty per se is not payable. Therefore, it is a Revenue n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having to be claimed by filing an application therefore although it does not imply anything to be contrary either. We find the Rule 9 of the said Rules in one of its provisos stipulates that "in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by 20th day of the following month." When seen in the light of this proviso, there is force in the argument of the appellants that when the intention of the Government was that the amount should be refunded, an express provision was made therefore; in the said Rule 10, there is no such provision. In this regard, it is seen that in the case of Sri Padma Balaji Steels (P) Ltd Vs CCE Coimbatore - 2009 (246) ELT 255 (Tri-Chennai), the Tribunal held as under:- "The claim of the assessees for abatement on the ground that the factory was closed for 9 days and 10 days respectively during the period 18-5-98 to 27-5-98 and 17-6-98 to 27-6-98 has been rejected by the Commissioner on the ground that since closure was for a period of less than one month, the assessee ought to have paid duty liability and then sought abatement, in terms of Rule 96ZO of the Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s closed as on 16-12-1998 itself, the question of 3 days advance notice for closure did not arise. In that case, the stenter should have been sealed in the aforesaid manner for the purpose of claiming abatement. It would be proper, therefore, that where independent processor is eligible for abatement, it should be granted to him whether he has paid the duty first or did not pay the duty in anticipation of obtaining the order of abatement. Though rule 96ZQ did not contain any specific provision in this regard, there was no specific provision to deny it either. 3. Accordingly, the Board has decided that the Commissioners should decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted without asking him to pay duty first or where he had paid the duty, he should be reimbursed the amount of duty paid, in terms of the order of abatement issued by the Commissioner." It is seen that the situation obtaining in the present appeals is quite akin to situation dealt with in the above circular dt. 28.02.1999. The Adjudicating authority has refused to follow the ratio of the said circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocessor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted without asking him to pay the duty first or where he had paid the duty, he should be reimbursed the amount of duty paid, in terms of order of abatement issued by the Commissioner'. Therefore, the appellants are eligible to the abatement of duty for the period 1-2-99 to 28-2-99." As regards the ld.D.R.'s reference to the judgment in the case of Shivshakti Agrifoods Pvt. Ltd. (supra), the issue there was abatement of duty on some machines which were in sealed condition during the month and the Tribunal held that the abatement under said Rule 10 cannot be given in respect of individual machines. Thus, this judgment is not relevant to the present appeals. The reference was also made by ld.D.R. to the case of K.P. Pan Products Pvt. Ltd (supra) but the issue there was whether the continuous period of 15 days of closure of the factory should necessarily fall during a particular calendar month and the Tribunal held that the said period of 15 days of continuous closure could fall in the two adjacent months also. Thus, this judgment is of no avail to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated on the pro rata basis of the total number of days and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month. 8. To sum up, the manufacturers shall file declaration of the production capacity with details of packing machines to the Deputy/Assistant Commissioner of Central Excise, who shall, after enquiry including physical verification, approve the declaration and determine and pass order considering the annual capacity of production. As per Rule 7, the duty shall be calculated by the manufacturer for a month as per rate of duty specified in the notification, to the number of operating packing machines in the factory during the month. In case a manufacturer permanently discontinues manufacture of existing retail price or commences manufacture of goods of new retail price, the duty will be recalculated, and, if the duty is paid more than the amount so recalculated, the balance shall be refunded to the manufacturer by the 20th day of the following month. 9. In the above legal position of Rule 2010, it is seen that the proviso to Section 3A(3) of the Act, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove (a nuisance)". "Abate" is to put an end to; nullify (as a nuisance); to reduce in degree or intensity; diminish; to reduce in value; deduct, omit. Webster's Seventh New Collegiate Dictionary. 12. The learned Special Counsel referred the expression "shall be abated" in Rule 10 would indicate that it is mandate of Revenue to grant abatement to the manufacturer and they cannot avail suo motu. On close reading of the provision of Rule 10 of the Rules 2010 read with proviso to Section 3A(3) of the Act, 1944, we are unable to accept the submission of the learned Special Counsel. The words "the duty calculated on a proportionate basis shall be abated", in Rule 10, if read with prefix words "in case a factory did not produce the notified goods during any continuous period of fifteen days or more" would make it clear that the duty calculated by the manufacturer as per Rule 7 of the Rules 2010, shall be reduced on a proportionate basis in case of non-production of goods for the period as specified therein. The Rule 10 of the said Rules 2010 further makes it clear that the duty calculated by the manufacturer shall be reduced on a pro-rata basis in case of non-production of goods "provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and Collection of Duty) Rules 2008, (similar to Rules 2010 herein), provides self-assessment procedure/self-sealing. The Hon'ble Madras High Court in the case of Kalai Magal Alloys Steel Pvt. Ltd. Vs CESTAT 2014 (303) ELT 44 (Mad.), while dealing with Rule 96ZP of the erstwhile Rules, 1944 read with Section 3A of the Act, 1944, observed that "on a perusal of Rule 96ZP of the Rules, it is evidently clear that it is a procedure of self-assessment where the manufacturers of hot re-rolled products falling under the different sub-headings in the Central Excise Tariff Act, are bound to debit the amount calculated at the rate of Rs.400/- per metric tonne at the time of clearance from the factory in the account-current maintained under Rule 173G(1) of the Central Excise Rules, 1944, and the duty liability is to be complied as detailed in Clauses I and II under Rule 96ZP of the Rules." 13.1 The learned Special Counsel strongly relied upon the decision of Hon'ble Supreme Court in the case of Priya Blue Industries (supra) and Flock (India) Pvt. Ltd (supra). In the case of Flock (India) Pvt. Ltd (supra), the Hon'ble Supreme Court observed that the earlier adjudication order, determining cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of Rule 4(2) of the said Rules. Thus, the observation of Hon'ble Court was in the context of determination of annual capacity of production and change in the installed machinery. In the present case, Rule 6(2) of the Rules 2010 provides determination and pass order concerning annual capacity of production of the factory. It is already stated that Rule 10 of the Rules 2010 for abatement in case of production of goods has no relation to determination of annual capacity of production. So, the facts of the present case are different from the said case law as relied by the learned Special Counsel. 15. In view of the above discussion, we agree with the decision of the Tribunal in the case of Thakkar Tobacco Products Pvt .Ltd (supra). It is noticed that the same view was taken by the Tribunal in the case of Trimurti Fragrances Pvt. Ltd & others (supra) and Godfrey Philips India Ltd (supra). Hence, the impugned orders cannot be sustained. Accordingly, the impugned orders are set aside. All the appeals filed by the Appellants are allowed with consequential relief. From the above Tribunal's order, it can be seen that the Tribunal dealing with the same issue even against the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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