9911796707
TMI Blog2017 (7) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... nctioning. In the instant case, the appellant has discharged the entire duty liability for the month of August 2011 by calculating the liability based upon the functioning of five machines which were also subsequently closed from 16th August 2011. In my considered view, the abatement that is provided under Rule 10 will be applicable to the appellant herein and Revenue is mandated to refund the said amount which has been collected in excess by them from the respondent. There cannot be any demand of duty from the respondent for the period from 16.08.2011 to 31.08.2011 and having paid the entire duty for the month of August in advance, the respondent is eligible for the refund of the duty paid in excess - appeal dismissed - decided again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fully discharged only on 12.12.2011. An interest of ₹ 25,10,181/ was paid on 30.08.2011 which meant that the interest was not fully paid as a part of the duty was paid subsequent to August 2011. 2.1 The appellant reduced the number of machines in operation from 35 to 5. The Assistant Commissioner fixed the duty liability on 35 machines vide speaking order No.1/2011 dated 01.08.2011. They had filed an appeal against the order with Commissioner (Appeals), Hyderabad who had dismissed the appeal vide OIA No. 50 51(Hyd-I) CE dated 27.03.2012. The appellant filed a Writ Petition No.9846 of 2012 in the Hon ble High Court of Andhra Pradesh at Hyderabad and Hon ble Court of AP on 10.04.2012 ordered not to enforce the impugned speaking o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant for the duty paid in the month of August 2011 for the production not undertaken needs to be refunded. 4. Learned A.R. after giving overall view of the issue involved submits that the 1st Appellate Authority has erred in allowing the refund by viewing the same in terms of Rule 10 of PMPM Rules which is incorrect as provisions of Rule 9 of PMPM Rules mandates that demand of the defaulted duty amount should have been paid and if the same remains unpaid, question of paying the duty on the actual working of the machines does not arise. It is his submission that in terms of 7th /8th Proviso to Rule 9 of PMPM Rules if there is a default in payment of duty in a month, the assessee is liable to pay monthly duty for the subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 10 has been analysed by the Hon ble High Court and held in favour of the assessee therein. He would also submit that similar issue came up before the Tribunal in the case of Pan Parag India Ltd Vs CCE, Bangalore [2016(344) ELT 497 (Tri-Bang)] and it was held that Rule 9 of the PMPM Rules are stand alone and in respect of the demand for the particular month, and cannot be applicable for invoking Rule 10 of PMPM Rules. 6. On a careful consideration of the submissions made, it is noticed that there is no dispute as to the facts of the case in as much the respondent in this case had discharged the duty liability under the PMPM Rules for the month of August 2011 submitting that they are going to undertake manufacturing activity by u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the learned counsel for the respondent that the judgement of the Hon ble High Court of Delhi in the case of Shakti Fragrances Pvt Ltd would apply in its full force. I respectfully reproduce the ratio as in paragraphs 11,12,13. 11. In the present case, the appellant had pressed into service Rule 10 of the PMPM Rules requires the duty calculated on a proportional basis to be abated in case the factory does not produce the notified goods during any continuous period of 15 days in a month. Rule 10 further requires the intimation to that effect to be given to the authorities at least three working days prior to the commencement of the period of closure. Rule 9 requires the monthly duty payable to the authorities to be paid by the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efund of the duty paid in excess. 9. I also find that the Revenue has not contested the findings of the 1st Appellate Authority that the entire order-in-original is liable to be set aside only on the ground that it violates the principles of natural justice, as the adjudicating authority has rejected the refund claim without issuing any show-cause notice. This finding of the 1st Appellate Authority having not being contested by the Revenue, on this ground also the impugned order is sustainable. In view of the foregoing, I hold that the impugned order is correct and legal and does not suffer from any infirmity. The impugned order is upheld and the appeal is rejected. (Order pronounced in open court on 14/07/2017) - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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