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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 by the jurisdictional officers and thereafter, after the end of the month, ascertaining the number of days closed, they should claim the excess paid amount, as abatement from the Department. No such procedure has been laid down in the said rules. Reliance also placed in the case of The Commissioner Versus M/s Thakkar Tobacco Products P. Ltd. [2015 (11) TMI 319 - GUJARAT HIGH COURT], where it was held that when the duty stands reduced to the extent provided in the rule, there is no liability to pay the same, inasmuch as, to that extent the duty stands abated. Therefore, if the assessee has correctly calculated the proportion of duty and set off the same against the duty payable for the next month, it cannot be said that the said action is contrary to the statutory scheme. The demand of full duty liability from the appellant not justified - appeal allowed - decided in favor of appellant. - Excise Appeals Nos.50554 and 50555/2017-EX (DB) - A/53639-53640/2017-EX[DB] - Dated:- 2-6-2017 - Shri Anil Choudhary, Member (Judicial) And Shri B. Ravichandran, Member (Technical) Shri S. Sunil and Anil Mishra, Advocates for the appellant Shri M.R. Sharma, DR for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring any abatement. The proceedings concluded in the impugned order. The Original Authority confirmed the central excise duty liability of ₹ 14,58,04,420/.- He also imposed penalty of 50% of the duty demand and further, penalty of ₹ 20 lakhs on Shri Upadhyay, Partner of the main appellant. 3. Ld. Counsel for the appellants submitted that during the impugned periods, the appellants manufacturing unit was closed intermediately with the due intimation to the jurisdictional officer. The appellants followed the procedure laid down in the said rules for sealing of the machines and de-sealing thereafter. Relying upon the various decided cases and the provisions of Rule 9 and 10 of the said Rules read with Section 3A(3) of the Central Excise Act, 1944, the ld. Counsel submitted that the impugned order is not legally tenable. There is no case for the Revenue to demand/recover any short payment by the appellant. The present demand is based on the summary determination of the liability without considering the closed periods of operation by the appellant. 4. Ld.AR reiterated the findings recorded in the impugned order. He submitted that the correct procedure that should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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. 7. Rule 9 talks about manner of payment of duty and interest. The provisions are as below:- Rule 9. Manner of payment of duty and interest.- The monthly duty payable on notified goods shall be paid by the 5th day of same month and an intimation in Form - 2 shall be filed with the Jurisdictional Superintendent of Central Excise before the 10th day of the same month: Provided that monthly duty payable for the month of July, 2008 shall be paid on or before 15th day of July, 2008: Provided further that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount: Provided also that in case of increase in the number of operating packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n till the time such non-payment continues, he shall be liable to pay the monthly duty based on the number of operating packing machines declared in the month for which duty was last paid by him or the total number of packing machines found available in his premises at any time thereafter, whichever is higher: Provided also that in case a new manufacturer commences production of notified goods in a particular month, his monthly duty payable for that month shall be calculated pro-rata on the basis of the total number of days in the month and the number of days remaining in that month starting from the date of commencement of the production of such notified goods and shall be paid within five days of such commencement. 8. Admittedly, the appellants have to discharge duty payable for a particular month, by 5th of the same month. Rule 10 provides for abatement when the unit was not in operation for more than 15 days continuously. It is to be noted that the procedure to be followed for claiming such abatement has not been elaborated in the said rules. The appellant could not pay duty by 5th of the same month as they have closed for operation during the period stipulated for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner, violative of the rules or the statutory scheme. 15. Besides, in the light of the findings recorded by the Tribunal to the effect that it is not disputed that the adjustments made were not more than the amounts of duties mandated to be abated as per Rule 10 of the PMPM Rules, the action of the respondent-assessee in computing the proportionate amount of duty towards the abatement and setting it off against the duty payable in the next month does not adversely affect the revenue in any manner. The abatement, in the opinion of this Court, is not akin to refund and means reduction or diminution of the duty. Therefore, when the duty stands reduced to the extent provided in the rule, there is no liability to pay the same, inasmuch as, to that extent the duty stands abated. Therefore, if the assessee has correctly calculated the proportion of duty and set off the same against the duty payable for the next month, it cannot be said that the said action is contrary to the statutory scheme. When the rules do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonethe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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