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TMI Blog2017 (6) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the month. They have, under due intimation, closed the operations and sealed the machines for periods in excess of 15 days. The dispute in the present appeals relates to the liability of the appellant to discharge full duty liability, in terms of the capacity fixation and duty liability as determined, by 5th of the given month. The Revenue entertained a view that irrespective of the closure of the unit and sealing of the machines, for more than 15 days in a month, the appellant /assessee is liable to pay full duty liability for all the machines by 5th of the given month and thereafter, obtain abatement of duty for closed period, from the jurisdictional officer. The appellant/assessee contended that when they are not operating the packing machines, they have to pay duty as per the abated liability in terms of Rule 10 of the said Rules and they have followed the said procedure. Accordingly, it is the case of the appellant/assessee that there is no need to pay full duty on all the machines for the full month and thereafter claiming abatement from the Department. It is contended by the appellant/assessee that no such procedure has been prescribed by the said Rules. However, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths covered by the present proceedings. The dispute in the present appeals is about the procedure to be adopted to consider the abatement, otherwise available to the appellant /assessee. Rule 10 of the said rules stipulates as below:- "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 available in the factory for the said period under the physical supervision of Superintendent of Central Excise, in the manner that these cannot be operated during the said period: Provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: Provided also that if there is revision in the rate of duty, the monthly duty payable shall be recalculated pro-rata on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such revision and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: Provided also that in case it is found that a manufacturer has manufactured goods of those retail sale prices, which have not been declared by him in accordance with provisions of these rules or has manufactured goods in contravention of his declaration regarding the plan or details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different retail sale prices and the number of machines intended to be used by him in each of such part or se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Thakkar Tobacco Products pvt. Ltd. - 2016 (3) 332 ELT 785 (Gujarat), Tanishq Enterprises -Final Order No.51699/2015-EX(SM), Som Pan Products Ltd. - Final Order No.52591-52593 dated 11.09.2015, Shakti Fragrances Pvt. Ltd. - 2015 (325) ELT 390 (Delhi), Shree Flavours Pvt. Ltd. - 2014 (304) ELT 441 and Jayaswals Neco Ltd. - 2006 (195) ELT 142. 10. The Hon'ble Gujarat High Court in the case of Thakkar Tobacco Products Pvt. Ltd. (supra), examining the provisions of Rule 10 observed as below: "14. On a plain reading of Rule 10 of the PMPM Rules, it is apparent that while the same provides that duty calculated on a proportionate basis shall be abated, it does not provide for any procedure for doing so. Thus, whereas Rules 96ZQ, 96ZO and 96ZP 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, Rule 10 of the PMPM Rules is wholly silent in that regard. Under the circumstances, having regard to the fact that Rules 96ZQ, 96ZP and 96ZO provided for making an order of abatement, however, there is no corresponding provision in the PMPM Rules, it can be inferred that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, the assessee would be liable to pay the interest for the period of late deposit of duty." 12. The ratio of these decisions have been followed to various decisions of the Tribunal mentioned above. 13. In Som Pan Products Pvt. Ltd. (Final Order No.52951-52953/2015 dated 11.09.2015), the Tribunal held as below:- "In this case, closure of the machines for more than 15 days is not in dispute. Moreover, this fact is also not in dispute that on 5th day of the same month, the machines were not working. Therefore, in the light of the decision in the case of Kays Frgrance Private Ltd. & Ors. (supra), we hold that the appellant is not required to first pay duty for whole of the month and then make claim of abatement. The appellant is required to pay duty for the days for which the machines were operating and only interest for the period from due date to the day on which the adjusted duty chargeable was paid would be leviable. This Tribunal arrived at the decision in the case of Kays Frgrance Pvt. Ltd. (supra) by relying on the decisions in the case of Padma Balaji Steel Pvt. Ltd. Vs. CCE, Coimbatore reported in 2009 (246) ELT 255 (Tribunal-Chennai) and in the case of Steel Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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