2017 (11) TMI 1513 - AT - Central Excise

Abatement - machinery sealed and kept without operation - present demand against the appellant is only on the ground that they have not followed the procedure of first paying duty based on the determination by the Jurisdictional Officers and thereafter claiming the abatement in terms of Rule 10 - Held that - similar dispute came before the Hon ble Gujarat High Court in the case of M/s Thakkar Tobacco (P) Ltd 2015 (11) TMI 319 - GUJARAT HIGH COURT , where it was held that if the assessee has correctly calculated the proportion of duty and set off the same against the duty payable for the next month, it cannot be said that the said action is contrary to the statutory scheme. The eligibility of abatement will arise only when the production is closed for a continuous period of 15 days or more - We note from the table annexed in the impugned order, at least in respect of one month (September, 2015), the continuous period of 15 days appears to have been not met. The fact of fulfillment of condition of continuous closer of 15 days or more can be re-verified by the jurisdictional authorities. Appeal allowed by way of remand.

Issues:
1. Dispute over the procedure for payment of Central Excise duty and claiming abatement.
2. Adjudication of the case by the original authority leading to the imposition of penalties.
3. Legal position regarding abatement calculated on a prorata basis when the factory does not produce excisable goods for 15 continuous days.
4. Applicability of various legal precedents in similar disputes.
5. Arguments presented by both parties regarding the duty liability and abatement calculation.
6. Analysis of the Tribunal's decision in light of legal provisions and precedents.
7. Verification and quantification of duty payable based on the re-verification of the continuous closure period.

Analysis:
1. The appeals were filed against the order of the Commissioner of Central Excise, Indore, regarding the payment of Central Excise duty by the appellants manufacturing Pan Masala. The dispute arose from the appellants' method of calculating duty liability based on abatement excluding the period when machines were sealed. The Revenue objected, initiating proceedings to recover the full duty liability as per capacity determination orders. The original authority held the appellants liable for duty payment and imposed penalties under relevant rules.

2. The appellants contended that abatement should be calculated on a prorata basis when the factory does not produce excisable goods for 15 continuous days, citing legal provisions and precedents like CCE v. Thakkar Tobacco Products Pvt Ltd. The Revenue argued that for certain months, the appellants were not eligible for abatement as production was not closed for more than 15 days, referencing specific instances.

3. The Tribunal analyzed the legal position and precedents, including the decision of the Hon'ble Gujarat High Court in M/s Thakkar Tobacco (P) Ltd, supporting the appellants' approach. The Tribunal also referred to its own decision in Som Pan Parag Products Limited, emphasizing that the abatement is not akin to a refund but a reduction of duty. The Tribunal found no fault in the appellants' method of calculating and offsetting duty liability against the next month's payment.

4. Ultimately, the Tribunal allowed the appeals by remanding the case for verification and quantification of duty payable based on the re-verification of the continuous closure period. The eligibility for abatement would arise only when the production is closed for a continuous period of 15 days or more, which needed to be re-verified by the jurisdictional authorities. The decision aimed to confirm the duty payable after re-verification and provide the appellants with an opportunity to present their case.

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