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2024 (8) TMI 594 - AT - Central ExciseLiability of appellant to pay the service tax - only contention of the department is that the appellant should have first paid the excise duty for the entire period and thereafter, they should have claimed the abatement in respect of the proportionate duty attributed to the period when the machine was under closure. Whether the appellant is liable to pay the service tax for the entire period and thereafter should claim the abatement of the duty attributed to the period when the machine was sealed as contended by the Revenue or whether the appellant can claim the abatement without payment of duty for the said period, as claimed by the appellant? HELD THAT - This very issue has been considered time and again in various decisions by this Tribunal and held that there is no need to first pay the duty and thereafter claim the abatement. This Tribunal considering Rule10 of the Pan Masala Packaging Machine (Capacity Determination and Collection of Duty) Rules, 2008 held that the claiming the abatement without paying the duty for the period when the machine was under closure is in order, therefore, on this account the demand is not sustainable. In the case of P.M. PRODUCTS VERSUS COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD-II 2023 (9) TMI 1370 - CESTAT AHMEDABAD Division Bench of this Tribunal on the identical issue has held that 'In the present case, the appellant is eligible for abatement in principle and under no circumstances the full duty can be demanded for the period of abatement when the machine was not in operation.' The issue is no longer res-integra and the appellant are entitled for the abatement even without first payment of the duty for the period of closure of machine. Therefore, the demand of duty in the present case is not sustainable - the impugned Orders are set aside - Appeal allowed.
Issues Involved:
1. Liability to pay service tax for the entire period before claiming abatement. 2. Whether abatement can be claimed without first paying the duty. Detailed Analysis: 1. Liability to Pay Service Tax for the Entire Period Before Claiming Abatement: The core issue in this case is whether the appellant must pay the service tax for the entire period before claiming abatement for the period when the machine was sealed. The Revenue contends that the appellant should first pay the duty for the entire period and then claim abatement for the period when the machine was sealed. However, the appellant argues that they can claim abatement without first paying the duty, as supported by various judicial precedents. 2. Whether Abatement Can Be Claimed Without First Paying the Duty: The appellant's counsel, Shri N. K. Tiwari, cited multiple judgments to support the argument that it is not necessary to first pay the duty and then claim abatement. The relevant judgments include: - PM PRODUCTS (2023) - KAY FRAGRANCE PVT LTD. (2012) - SHREE FLAVORS PVT LTD. (2014, 2015) - PANPARAG INDIA LTD. (2016) - SHAKTI FRAGRANCE PVT LTD. (2015) - VARUN SILK MILLS PVT LTD. (2007) - GODFREY PHILIPS INDIA LTD. (2015) - TRIMURTI FRAGRANCE (2015) - THAKKAR TOBACCO (2015, 2016) - STEEL INDUSTRIES OF HINDUSTAN INDUSTRIAL AREA (2013) - UNICORN PACKERS PVT LTD. (2015) The Tribunal reviewed the records and found that the appellant had followed the procedure for sealing and desealing the machines under departmental supervision and claimed abatement only for the period when the machine was under closure. The Tribunal noted that this issue had been considered multiple times and consistently held that there is no need to first pay the duty and then claim abatement. Judgment Analysis: - PM PRODUCTS Case: The Tribunal confirmed that the appellant followed Rule 10 of the Pan Masala Packaging Machines (Capacity Determination and Collection of Duty) Rules, 2008, which allows for abatement without first paying the duty. - Thakkar Tobacco Products Pvt. Ltd. Case: The Gujarat High Court ruled that abatement means reduction of duty and not a refund, and there is no need to first pay the duty and then claim abatement. - Shakti Fragrances Pvt. Ltd. Case: The Delhi High Court held that failure to pay duty by the fifth day of the month does not deprive the assessee of the right to pro-rata abatement of duty. - Trimurti Fragrances Pvt. Ltd. Case: The Allahabad High Court confirmed that the appellant is entitled to abatement without first depositing the duty, provided the statutory requirements are met. - Kay Fragrance P. Ltd. Case: The Punjab & Haryana High Court held that abatement can be granted even if the closure period spans two calendar months, and there is no need to pay duty for the entire month before claiming abatement. - Shree Flavors Pvt. Ltd. Case: The Tribunal and subsequently the Punjab & Haryana High Court upheld that the appellant can claim abatement without first paying the duty, provided the procedural requirements are met. Conclusion: The Tribunal concluded that based on multiple judgments, the appellant is entitled to abatement without first paying the duty for the period when the machine was under closure. The demand for duty by the Revenue was deemed unsustainable. Consequently, the impugned orders were set aside, and the appeals were allowed with consequential relief. Pronouncement: The judgment was pronounced in the open court on 08.08.2024.
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