2023 (6) TMI 493 - AT - Central Excise

Benefit of abatement under Rule 10 of Chewing Tobacco and Un-manufactured Tobacco Packing Machine (Determination of Capacity and Collection of Duty) Rules, 2010 - it is alleged that abatement under rule 10 of the 2010 Rules cannot be claimed suo motu for the reason that the appellant was required to first pay the entire amount determined and then claim abatement - whether the appellant could suo motu claim abatement and this issue was decided by the Tribunal in favour of the appellant? - HELD THAT - On a careful perusal of the order dated October 24, 2017 passed by the Tribunal, there is no manner of doubt that the matter had been remitted to the Principal Commissioner to only determine the number of days the factory of the appellant remained closed each month. The period, so determined, was then required to be dealt with in accordance with the provisions of rule 10 of the 2010 Rules and paragraph 10 of the order. If that be so, there is no manner of doubt that all that was required to be determined by the Principal Commissioner was whether the factory of the appellant remained closed for a minimum period of fifteen continuous days each month. The Principal Commissioner proceeded to examine this issue and came to a conclusion that the factory of the appellant remained closed for a minimum period of fifteen continuous days each month. This finding of the Principal Commissioner is based on the orders passed regarding sealing and unsealing of the factory of the appellant by the officers of the Department and this is also in conformity with the factual position contained in Annexure A to the show cause notice. The finding of the Principal Commissioner has not been assailed by the Department also and rightly so because it is based on the factual position. Such being the position, it has to be held that the appellant was justified in claiming suo motu rebate under rule 10 of the 2010 Rules. The order dated January 29, 2019 passed by the Principal Commissioner cannot, therefore, be sustained and is set aside - appeal allowed.

Summary

Issues involved:
The issues involved in the judgment are related to the eligibility of the appellant to claim abatement under rule 10 of the 'Chewing Tobacco and Un-manufactured Tobacco Packing Machine (Determination of Capacity and Collection of Duty) Rules, 2010' for the period during which the factory was closed for more than fifteen continuous days each month from November 2011 to March 2012.

Summary:

Issue 1: Interpretation of Rule 10 of the 2010 Rules
The appellant claimed abatement under rule 10 of the 2010 Rules for the period during which the factory was closed for more than fifteen continuous days each month. The Commissioner initially denied the claim, stating that the appellant must first pay the entire amount determined before claiming abatement. However, the Tribunal, in a previous decision, allowed the appeal by way of remand, emphasizing the need for the adjudicating authority to determine the closure period of the factory and allow abatement with a reasonable opportunity for the appellant.

Issue 2: Determination of Factory Closure Period
Upon remand, the Principal Commissioner determined that the factory remained closed for a minimum of fifteen continuous days each month, making the appellant eligible for abatement under rule 10. The Commissioner also assessed the working status of the machines during the closure period and concluded that only two out of four machines were operational, leading to the rejection of abatement claim for those specific machines.

Issue 3: Applicability of Tribunal's Order
The appellant argued that based on the Tribunal's order and the finding of factory closure for fifteen continuous days each month, they were entitled to claim abatement under rule 10. The Department contended that relief could not be granted as the Commissioner acted in accordance with the Tribunal's operative part. The Principal Commissioner, after analyzing the facts and rule 10 provisions, confirmed the demand due to the Tribunal's directions, despite finding in favor of the appellant's eligibility for abatement.

Conclusion:
The Principal Commissioner's decision was challenged as it did not align with the Tribunal's remand order, which solely required determining the factory closure period each month. The Commissioner's finding of the factory being closed for fifteen continuous days monthly was undisputed and formed the basis for the appellant's rightful claim of abatement under rule 10. Therefore, the Principal Commissioner's order dated January 29, 2019, was set aside, and the appeal was allowed in favor of the appellant.