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TMI Blog2011 (4) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue, it changes the whole situation - matter remanded back of ascertaining of facts correctly. - E/683/10 - A/327/2011-WZB/C-II(EB) - Dated:- 18-4-2011 - Shri B.S.V. Murthy, Shri Ashok Jindal, JJ. Shri Manish Mohan SDR for Appellant Per: B.S.V. Murthy, Revenue is seeking early hearing of the appeal and stay against the impugned order. The respondent had filed a refund claim of Rs.7,91,667/- on the ground that there was no production for the period of 19 days. The appeal has been filed on the ground that the factory was not non-operational for 15 days or more in one month and if the factory was non-operational (if there was no manufacture) in a month for less than 15 days but more than 15 days continuously ranging be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11.9.2008 i.e. for 11 days and the duty liability for 11days comes to Rs.4,58,333/-. Thus, in the month of August 2008, the said unit was non-operational for 19 days. Therefore, the claimant has filed refund claim for 19 days on pro-rata basis amounting to Rs.7,91,667/-. As per para 10 of Notification No. 30/08-CE (NT) dated 1.7.2008, in case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of such goods files an intimation to this effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen that in the first paragraph reproduced above, the show-cause notice says that the factory was non-operational for 11 days in September and 19 days in August, 2008 and the refund claim was for closure of 19 days of closure in August on pro-rata basis. In the subsequent paragraph, however, it has been stated that the factory was closed for 19 days in September, 2008. The show-cause notice also says that there was removal of 6000 pouches of Gutkha on 22.9.2008. It was on this ground that there was removal of Gutkha during the period and the factory was supposed to be non-operational, the original adjudicating authority rejected the refund claim. Here itself, there is a confusion, as can be seen between two paragraphs of the show-cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e go to the appeal memorandum, in the appeal memo the difference between the provisions of Rule 96ZND of CER, 1944 and Rule 10 of the Rules have been explained. It has been stated that in Rule 96ZND of CER, 1944 the word used is and no removal of said goods , whereas in Rule 10 of the Rules the word used is and no removal of goods . The word said according to the Revenue would mean that the removal was of the said goods and in the absence of the word said a view has been taken that no removal can take place. 7. Therefore, prima facie it is quite clear that the Commissioner (Appeals) has gone on the assumption that both the rules are same when there is a difference between the two rules and according to the Revenue, it changes the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X
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