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2023 (9) TMI 640 - AT - Central ExciseCalculation of duty - production of a new retail sale price was done from 28.12.2011 to 31.12.2011 - whether the duty for the entire month has to be paid or duty on pro-rata basis only for four days, when the production has taken place? - abatement claim - HELD THAT - The contention of the department is that appellant was supposed to pay duty for the entire month of December 2011. Thereafter, they should have claimed abatement by filing a refund claim. This shows that department is in agreement that for the closer days of the production duty per se is not payable. Therefore, it is a Revenue neutral situation, even if the appellant pay the duty and undisputedly entitled for claim of abatement or pay the duty only for the production days, in the present case four days. The identical issue has been considered by this Tribunal in M/S ZEST PACKERS PVT. LTD AND UNICORN PACKERS PVT. LTD VERSUS CCE AHMEDABAD-II 2015 (8) TMI 25 - CESTAT AHMEDABAD even against the impugned order and the demand was set aside holding that It is already observed that the expression in Rule 10 are clear that the manufacturer shall calculate the duty by reducing amount on a proportionate basis in respect of non-production of goods. From the above Tribunal s order, it can be seen that the Tribunal dealing with the same issue even against the impugned order for the portion of demand confirmed, the Tribunal has set aside the demand and allowed the appeal of the respondent. Therefore, there is no substance in the revenue s appeal. Appeal of Revenue dismissed.
Issues Involved:
1. Whether the duty for the entire month must be paid or on a pro-rata basis for the days when production took place. 2. The procedure for claiming abatement of duty under the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. 3. The applicability of previous Tribunal decisions and Board circulars on the current case. Summary: 1. Duty Payment for the Entire Month vs. Pro-rata Basis: The primary issue is whether the duty for December 2011 should be paid for the entire month or on a pro-rata basis for the four days when production occurred. The department contends that the duty for the entire month should be paid in advance, with abatement claimed for non-production days. However, the Tribunal found that this situation is revenue-neutral, as the appellant is entitled to claim abatement for the days when production did not occur. The Tribunal referenced previous decisions where similar demands were set aside, reinforcing that duty should be calculated only for the production days. 2. Procedure for Claiming Abatement: The Tribunal examined whether a manufacturer can suo motu avail the benefit of abatement for non-production periods or must file an application for abatement, subject to the refund procedure under Section 11B of the Act, 1944. The Tribunal concluded that the language of Rule 10 of the 2010 Rules allows manufacturers to calculate duty by reducing it on a proportionate basis for non-production periods, provided they file an intimation with the Deputy Commissioner or Assistant Commissioner of Central Excise. 3. Applicability of Previous Tribunal Decisions and Board Circulars: The Tribunal referenced several previous decisions, including Thakkar Tobacco Products Pvt. Ltd., which supported the appellant's position. The Tribunal also noted that Board circulars, while informative, do not have statutory force and cannot override judicial pronouncements. The Tribunal found that the appellant had complied with the conditions stipulated in Rule 10, such as filing the necessary intimation and following the required procedures for abatement. Conclusion: The Tribunal upheld the order to the extent of the demand involved in the present revenue's appeal and dismissed the revenue's appeal accordingly. The decision was pronounced in the open court on 11.09.2023.
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