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TMI Blog2015 (11) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.2013. At that time the closure was continuing and further the duty of May was not yet paid. It is impossible for the appellant to include the closure period in May in that application. - appellant has paid the duty with delay only on 16.05.2013. But the it was paid with interest and respondent has accepted the same. To claim abatement, Rule 10 lays down only two conditions. First, that there is no production during any continuous period of fifteen days or more. Second, that the manufacturer files an intimation to this effect to the Deputy Commissioner or Assistant Commissioner with copy to Superintendent at least three working days prior to the commencement of the said closure period. There is no condition imposed with regard to date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 requested the department to seal all five pouch packing machines with effect from 16.4.2013. The Range Superintendent sealed all the five pouch packing machines under regular panchnama dated 15/16.04.2013. Thereafter on 10.5.2013 and 13.5.2013, the appellant requested the Assistant Commissioner for unsealing of the five pouch packing machines in order to restart production. As per direction of the Assistant Commissioner, the Range Superintendent unsealed the five machines on 15.5.2013. There was no production of pan masala in the factory for the period 16.4.2013 upto 15.5.2013. Rule 10 of Pan Masala Packaging Machines (Capacity Determination and Collection of Duty) Rules, 2008, provides that the assessee can claim abatement of the duty pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order and urged that the Commissioner (Appeals) has rightly denied abatement. According to Revenue, the claim of abatement is not sustainable for three reasons. Firstly, the application for abatement is in regard to above period from 01.05.2013 to 15.5.2013. The production was closed actually from 16.4.2013 upto 15.05.2013. This is a continuous period. The appellant has split the period falling in April and May into two separate periods. Being a single period of closure of production, the period in the claim is included in the earlier application which has been allowed. Secondly as per Rule 9 the duty has to be paid within 5th day of every month. The appellant paid the duty for month of May with delay only on 16.5.2013. As the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencement of said period may be removed within first two days of the said period : Provided further that when the manufacturer intends to restart his production of notified goods, he shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, of the date from which he would restart production, whereupon the seal fixed on packing machines would be opened under the physical supervision of Superintendent of Central Excise. (emphasis supplied) 6. It is not disputed that the machines were sealed and there was no production for the period 16.4.2013 to 15.05.2013. The appellant had paid duty of ₹ 70,00,000/- for the month of April before 5th April. After cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no production. The appellant has then rightly filed the claim for the period 01.05.2013 to 15.05.2013. The view of the Commissioner (Appeals) that the closure is of a single continuous period and is included in the earlier claim is without any substance. If the argument of the Revenue is accepted, the assessee would put to an artificial restriction of not being able to close down the factory for a period spread over more than a month, which would be absurd. 7. The second ground alleged is that the duty for the month of May was not paid within the due date. It is correct that the appellant has paid the duty with delay only on 16.05.2013. But the it was paid with interest and respondent has accepted the same. To claim abatement, Rule 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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