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TMI Blog2017 (3) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... peal No. 1172 of 2012 & 742 of 2011 - A/52058–52059/2017 -EX[DB] - Dated:- 27-2-2017 - Mr. M. V. Ravindran, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Sh. K.K. Verma Sh. Rupesh Kumar, Advocates for the appellant Sh. H. C. Saini, AR for the Revenue ORDER Per M. V. Ravindran These two appeals are interconnected hence taken up for disposal by this common order. Excise Appeal No.742/2011 is directed against order-in-appeal No. 281/RPR-1/2010 dated 21.12..2010 while Excise Appeal No. 1172/2012 is directed against order-in-original No. COMMISSIONER/RPR/CEX/13/2012 dated 28.02.2012. 2. Heard both sides and perused the records. 3. The relevant facts that arises for consideration, after filterin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting authority allowed the said abatement by passing order-in-original. Aggrieved by order-in-original Revenue filed an appeal before the first appellate authority. The first appellate authority allowed the appeal of the Revenue by setting aside the order-in-original. The said order-in-appeal is contested before us in Appeal No. E/742/2011. Simultaneously, Revenue authorities also issued show cause notice to the appellant for recovery of the abatement sanctioned by the adjudicating authority, by show cause notice dated 21/28.12.2010 which after due process of law was confirmed by the Commissioner, as an adjudicating authority by order-in-original dated 28.02.2012 which is being appealed in Appeal No. E/1172/2012. 4. On consideration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation regarding closure of production activity. But in the instant case, they did not adhere to the sealing of each packing machines which they are bound by the relevant Rule of law read with Notification No. 30/2008 dated 01.07.2008 as amended. Also I find that, the sealing of the locks of the hall and main gate of the factory where the machines are kept cannot be accepted as sealing of the packing machines as nothing to this effect has been provided in the said Rule-10. Thus in the absence of sealing of each 53 Nos. of packing machines for the impugned period of closure, the stipulations under Rule 10 of the Pan Masala Packing Machines Rules, 2008 have not been followed. 5. The adjudicating authority in this appeal has totally mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be operated. We also find that the provisions of Rule 10 of the said Rule as under: Rule 10. Abatement in case of non-production of goods .- 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 Superintendent of Central Excise, [at least three working days] prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Masala Pvt. Ltd. in Excise Appeal No.2023 of 2012 vide final order No. A/959/2012-EX (BR) while explaining the provision of rule as recorded the abatement held as under: 7. We do not find merit in the above submission. The plea taken by learned DR is mis-conceived and is based on incorrect reading of Rule 10 quoted above. Bare reading of the above quoted Rule would show that as per the Rule, an assessee is entitled to abatement provided thee has been no production in the factory for a continuous period of 15 days. The rule nowhere provides that continuous non-production of excisable goods should be during a given calendar month. Admittedly in this case, there was no production in the factory of the assessee for a continuous period o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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