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TMI Blog2017 (5) TMI 1335X X X X Extracts X X X X X X X X Extracts X X X X ..... was working. Thus, demand of duty for the whole month was held unsustainable. Appeal dismissed - decided in favor of respondent-assessee. - E/2694/2010-EX[SM] - Final Order No. 70461/2017 - Dated:- 5-5-2017 - Mr. Anil Choudhary, Member (Judicial) Shri Rajeev Ranjan, Joint Commissioner (AR) for Appellant Shri Anurag Mishra, Advocate, for Respondent ORDER The present appeal is filed by the Revenue against Order-in-Appeal No. 61-CE/GZB/2010 dated 29/04/2010 passed by Commissioner of Central Excise Customs (Appeals), Ghaziabad. 2. The issue in this appeal is whether under the Pan Masala Packaging Machines (capacity determination and collection of duty) Rules, 2008, the abatement is admissible suo motu or the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days, that is from 16/01/2009 to 02/02/2009 during which the unit remained admittedly closed, wherein the machines were in sealed condition, which worked out to ₹ 2,47,32,718/- the abatement was taken while paying the duty for February, 2009 by depositing the balance amount payable. A letter dated 17th February, 2009 was filed with the revenue for allowing the abatement. The adjudicating authority allowed the abatement for ₹ 2,11,61,290/- for the period 16/01/2009 to 31/01/2009, but refused to allow abatement of ₹ 35,71,428/- for the remaining period of two days that is February 1 and 2 on the ground that respondents took the abatement for these two days suo motu and did not pay the duty first and then claimed the abatemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of duty for the whole month was held unsustainable. 7. Having considered the rival contentions, I find that the issue herein is squarely covered by the precedent ruling of this Tribunal in the case of M/s Trimurti Fragrances Pvt. Ltd. (supra), I reproduce para 9.1 of this case for further reference, as follows:- 9.1 If the Department's contention is accepted, it would make the Fourth Proviso to Rule 9 redundant, which in view of the above mentioned judgment of Hon'ble Bombay High Court is not permissible. The Fourth proviso to Rule 9 clearly states that in case a manufacturer permanently discontinues the manufacture of goods of existing RSP, his monthly duty liability shall be re-calculated on pro-rata basis of the t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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