2011 (4) TMI 647 - AT - Central Excise

Refund claim - No production for the period of 19 days - whether the respondent is eligible for refund when there was removal but no production - Appeal filed by the Revenue is on the ground that the period during which no production for two months and in both the months, the period had not exceeded 15 days and, therefore, the extension of abatement benefit was wrong - Prima facie it is quite clear that the Commissioner (Appeals) has gone on the assumption that both the Rule 96ZND of CER, 1944 and Rule 10 of the Rules are same when there is a difference between the two rules and according to the Revenue, it changes the whole situation - matter remanded back of ascertaining of facts correctly.

Summary

Issues:
1. Early hearing and stay against the impugned order sought by Revenue.
2. Refund claim filed based on non-operational days and abatement eligibility.
3. Interpretation of relevant notifications and rules regarding duty abatement.

Analysis:
1. The Revenue sought early hearing and stay against an impugned order regarding a refund claim of Rs.7,91,667 based on non-operational days of a factory. The appeal contended that if the factory was non-operational for less than 15 days but more than 15 days continuously in two months, abatement cannot be allowed.

2. The Tribunal noted a discrepancy in the show-cause notice regarding the operational days of the factory and the removal of goods during the closure period. The original adjudicating authority rejected the refund claim due to the removal of goods during the non-operational period. The Commissioner (Appeals) considered the issue and referenced relevant rules, stating that abatement can be allowed even if there is removal of stock when there is no production during the relevant period.

3. The appeal by the Revenue focused on the eligibility for abatement when there was no production for two months, arguing that the extension of abatement benefit was incorrect. The appeal memorandum highlighted a difference in wording between Rule 96ZND of Central Excise Rules, 1944, and Rule 10 of the Rules, emphasizing the significance of the term "said goods" in one rule and its absence in the other. The Tribunal found that the Commissioner (Appeals) did not consider this distinction and directed a reassessment considering the differences between the rules and ensuring correct facts are ascertained before a final decision.

4. Consequently, the Tribunal remanded the matter to the Commissioner (Appeals) for a reevaluation based on the submissions made by the Revenue, providing a reasonable opportunity for the respondent to present their case before a final decision is reached. The case highlighted the importance of precise interpretation of rules and notifications in determining duty abatement eligibility, emphasizing the need for clarity and accuracy in decision-making processes.