2017 (12) TMI 152 - AT - Central Excise

Abatement - pan masala - whether the appellant is entitled to abatement for the period 01/04/2010 to 08/04/2010 under the admitted facts that their production of Pan Masala remained admittedly closed from 14/01/2010 till 08/04/2010, continuously? - Held that - 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 - the appellant is entitled to abatement for the period 01/04/2010 to 08/04/2010 - The assessee is entitled to take credits/adjustments of the amount of ₹ 19,20,000/- relating to the month of April, 2010, with interest as per Rules. whether the appellant had filed the appeal within the condonable period before the Learned Commissioner (Appeals)? - Held that - the limitation has to be counted from 30/08/2010 when the appellant received the Order-in-Original and from that date the time taken is about 27/28 days. The Learned Commissioner (Appeals) have erred in counting the limitation from 26/08/2010 - the appeal is filed with the delay of about 28 days, which is condonable and accordingly, the said delay stands condoned by this Tribunal. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Entitlement to abatement for the period 01/04/2010 to 08/04/2010
2. Timeliness of filing the appeal before the Learned Commissioner (Appeals)

Entitlement to Abatement:
The appeal centered around whether the appellant could claim abatement for the period from 01/04/2010 to 08/04/2010. The appellant's factory remained closed for a continuous period of 85 days, raising the question of abatement eligibility as per Rule 10 of PMP Rules, 2008. The Assistant Commissioner initially disallowed the abatement claim for this period, citing Rule 5 of the rules. However, the appellant argued that the closure period met the criteria for abatement under Rule 10, which allows duty abatement if a factory does not produce notified goods for a continuous period of 15 days or more. The appellant contended that the closure period was correctly calculated and aligned with a previous tribunal judgment. After considering the arguments, the Tribunal concluded that the appellant was indeed entitled to abatement for the period 01/04/2010 to 08/04/2010 due to the continuous 85-day factory closure. The appeal was allowed, overturning the Assistant Commissioner's decision on abatement.

Timeliness of Appeal Filing:
The second issue revolved around the timeliness of filing the appeal before the Learned Commissioner (Appeals). The appeal had been dismissed initially on the grounds of limitation, as the Department had served the order to an unauthorized advocate, leading to delays in drafting and filing the appeal. The appellant argued that the limitation period should be counted from the date the appellant received the order, not the date the unauthorized advocate was served. The Tribunal agreed with the appellant, holding that the service on the unauthorized advocate was not valid, and the limitation period should start from the date the appellant received the order. As a result, the Tribunal condoned the delay of approximately 28 days in filing the appeal, allowing the appeal to proceed.

In conclusion, the Tribunal ruled in favor of the appellant on both issues. The appellant was deemed entitled to abatement for the period 01/04/2010 to 08/04/2010 due to the factory's continuous closure for 85 days. Additionally, the delay in filing the appeal was condoned, and the appeal was allowed to proceed. The impugned order disallowing abatement for the specified period was set aside, granting the appellant consequential benefits.