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TMI Blog2017 (4) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... of abatement, by appropriate authority, assessee could on their own calculate duty and set off same against duty payable in the next month and such action of the assessee is not violative of any rule or any provision of law. - no fault can be found in the approach of the assessee in taking suo-moto the benefit of such abatement - the whole issue is revenue neutral - appeal allowed - decided in favor of appellant. - Appeal No. E/56013/2013-EX [DB] - Final Order No. 70371/2017 - Dated:- 13-4-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Rupesh Kumar, Advocate Shri Pravesh Bahuguna, Advocate, for Appellant Shri D. K. Deb, Assistant Commissioner, (AR), for Respondent ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hine per month for BCT of ₹ 1.50/- [upto 31/03/2011] and ₹ 14,25,000/- per pouch packing machine per month for BCT of ₹ 2.00/- [w.e.f. 01/04/2011]. 5. The relevant period involved in the present proceedings is April, 2011 . During this month, admittedly, total of 21 pouch packing machines of Gutkha of MRP ₹ 1/- were operational and 2 pouch packing machines of BCT of MRP ₹ 2/- were operational. Accordingly, the appellant was liable to pay duty of ₹ 2,62,50,000/- [21 x ₹ 12,00,000/-] on Gutkha and ₹ 28,50,000/- [02 x ₹ 14,25,000/-] on BCT. 6. It is relevant to mention here that, during the month of March 2011, the undisputed fact is that the factory of the appellant was closed from 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as short payment in the SCN, as can be appreciated from the following paragraphs (at page 162) of SCN:- Whereas, the party have also suo-moto credited an amount of ₹ 2,48,33,870/- in their PLA of April, 2011 vide Entry No. 4 dated 05/04/2011 without following the proper procedure and a remark/note was given by them in the respective PLA as duty adjustment of month of March, 2011 . Therefore, suo-moto credit of ₹ 2,48,33,870/- taken/utilized by them in their PLA are not supported by any authorization for abatement from the competent authority. Rather they never applied for any abatement claim etc. pertaining to the above amount before the competent authority. 9. The learned Commissioner, vide impugned O-i-O dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of BDH Industries Ltd. (Supra) is not applicable as the same deals with the refund arising under Section 11B of the Central Excise Act, 1944 where a complete procedure has been prescribed including the format of application under which the refund needs to be applied. Even otherwise also, this Hon ble Tribunal in the case of Sopariwala Exports Pvt. Ltd. Versus Commissioner of Central Excise, Vadodara reported at 2013 (291) E.L.T. 70 (T), by relying upon the decision of the Karnataka High Court in the case of Commissioner of Central Excise, Bangalore Versus Motorola India Pvt. Ltd. reported at 2000 (206) E.L.T. 90 (Karnataka) observed that the decision in the case of BDH Industries Ltd. (Supra) is no longer good law, being contrary to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate basis shall be abated, it does not provide for any procedure for doing so. Thus, whereas Rules 96Zq, 96ZP 96ZO of the Central excise Rules, 1944, which also are schemes under the compounded levy scheme, there were express provisions for making an order of abatement by the Commissioner, having regard to the fact that Rules 96Zq, 96ZP 96ZO of the Central excise Rules, 1944, provided for making an order of abatement, however, there is no corresponding provision in the PMPM rules, it can be inferred that the rule making authority has consciously omitted making such provision. Therefore, in the absence of any specific provision for making an order of abatement, it cannot be said that the action of the assessee in calculating the duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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