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TMI Blog2017 (10) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... o such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement. Demand of interest u/s 11AB - Held that: - the restarting of operation of the factory subsequent to 05/08/2009, amounts to increase in the number of operating packing machines in the factory during the month - the payment of duty was required to be made by the 5th day of the next month, being September, 2009, which admittedly have been paid on such date - no interest is payable under Section 11 AB of the Act by the appellant assessee in the facts of this case. Whether the appellant is entitled to abatement, as they have cleared raw material and packing goods which are not the notified goods? - Held that: - the int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5/08/2009, the appellant did not pay the duty on 5th August for the month of August, but paid the duty by 5th of September, 2009. Thus the show cause notice sought to demand the duty amounting to ₹ 1,19,81,162/- as it appeared to Revenue that the appellant could not have taken suo moto abatement and secondly interest was also demanded under Section 11AB on the said amount starting from 05/08/2009 till the date of deposit of the duty. Vide the impugned order the Learned Commissioner was pleased to confirm the demand of duty holding that appellant could not take suo moto abatement under the facts and circumstances and further have also demanded the interest. 3. Being aggrieved the assessee is in appeal on the ground that they have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee and against the Revenue. So far the second issue of interest is concerned we hold that the restarting of operation of the factory subsequent to 05/08/2009, amounts to increase in the number of operating packing machines in the factory during the month, and accordingly we hold that the payment of duty was required to be made by the 5th day of the next month, being September, 2009, which admittedly have been paid on such date. Accordingly we hold that no interest is payable under Section 11 AB of the Act by the appellant assessee in the facts of this case. 7. The third issue involved is regarding whether the appellant is entitled to abatement, as they have cleared raw material and packing goods which are not the notified goods. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the first proviso are only notified goods and nothing else. In this view of the matter, we set aside the impugned order and allow the appeal with consequential benefits. We also direct the Adjudicating Authority to grant the refund along with interest as per Rules within a period of 45 days from the date of service or receipt of a copy of this order. 10. Accordingly we allow this ground also, in favour of the appellant assessee and against the Revenue. 11. Accordingly we allow the Appeal No.E/2551/2011-EX[DB] by the appellant assessee and dismiss the appeal filed by the Revenue being Appeal No.E/2252/2011-EX[DB]. The appellant assessee shall be entitled for consequential benefits, if any, in accordance with law. (Dictated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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