9911796707
TMI Blog2015 (2) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in these cases is common, these appeals are being disposed of by this common order. 2. The facts, briefly stated, are as under:- 2.1 The appellants had been operating under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 (hereinafter referred to as the said Rules ) and had been paying duty as per Rule 7 under the said Rules. However, in situations where after payment of duty by 5th for a particular month, if the factory remained closed for a period of 15 days or more, they became entitled to abatement under Rule 10 of the said Rules and so while paying duty for the subsequent month, they adjusted the amount of abatement and paid the balance. It is seen that all the requirement for abatement like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of CESTAT in the case of CCE Lucknow Vs K.P. Pan Products Pvt. Ltd 2013 (288) ELT 478 (Tri-Del) and in the case of Shiv Shakti Agrifood Pvt. Ltd. Vs CCE Delhi-I 2012-TIOL-1219-CESTAT-DEL. 5. Extensively heard the arguments and contentions of both sides. At the very outset, it needs to be recorded that in none of the impugned orders, it in dispute that there was a closure of factory for more than 15 days and the required procedure of due intimation of closure, sealing and due intimation of re-opening was followed. In other words, it is not in dispute that the requirements stipulated in Rule 10 of the said Rules were fulfilled. It is also not disputed that the adjustments made were not more than the amounts of duties mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is such a condition prescribed, the Tribunal has held in the case of Varun Silk Mills P. Ltd. v. CCE, Surat, 2007 (214) E.L.T. 227 (Tri.-Ahmd.) that abatement benefit is a substantial benefit which cannot be denied only on the ground that the assessee did not pay duty first and then claim abatement. In the absence of any such condition in Rule 96ZO, which is relevant rule in the present case, the benefit of abatement should have been extended. The Commissioner has read into a rule something does not exist thereunder. We, therefore, set aside the impugned order and allow the appeal. 7. We find that the Board vide Circular No.331/47/97-CX, dt.30.08.1997, in Para 4(e) observed as under:- "Rule 96ZO has been amended to allow abatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself, the question of 3 days advance notice for closure did not arise. In that case, the stenter should have been sealed in the aforesaid manner for the purpose of claiming abatement. It would be proper, therefore, that where independent processor is eligible for abatement, it should be granted to him whether he has paid the duty first or did not pay the duty in anticipation of obtaining the order of abatement. Though rule 96ZQ did not contain any specific provision in this regard, there was no specific provision to deny it either. 3. Accordingly,'the Board has decided that the Commissioners should decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after is basically a question of procedure. I do not think that the substantial benefit should be denied on this ground. It needs to be pointed out that the CESTAT held this view inspite of the fact that the Rule 96ZQ (7)(e) specifically required the payment of duty for the entire period of the month as is evident from the language of that Rule [96ZQ(7)(e)], which is reproduced below:- "When the claim for abatement by the independent processor is for a period of less than one month, he shall be required to pay the duty, as applicable, for the entire period of the month and may subsequently seek such claim after payment of such duty . Needless to say that such a requirement is conspicuous by its absence in Rule 10 of the said Rules. Earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuous period of 15 days of closure of the factory should necessarily fall during a particular calendar month and the Tribunal held that the said period of 15 days of continuous closure could fall in the two adjacent months also. Thus, this judgment is of no avail to the Revenue. As regards the Board s circular dt.12.03.2009 stating that the abatements are subject to pre/post-audit, we do not necessarily see any fatally irreconcilable contradiction between the Board s circulars dt.15.09.1999 & 30.08.1997 on the one hand and the one dt.12.03.2009 on the other in as much as when the adjustment of abatement has been made, nothing prevents Revenue froma auditing the correctness thereof. More importantly, the Board s circulars have no statu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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