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TMI Blog2017 (11) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... d action is contrary to the statutory scheme. The eligibility of abatement will arise only when the production is closed for a continuous period of 15 days or more - We note from the table annexed in the impugned order, at least in respect of one month (September, 2015), the continuous period of 15 days appears to have been not met. The fact of fulfillment of condition of continuous closer of 15 days or more can be re-verified by the jurisdictional authorities. Appeal allowed by way of remand. - E/51107-51108/2017 - A/57483-57484/2017-EX[DB] - Dated:- 31-10-2017 - Dr. Satish Chandra, President And B. Ravichandran, Member (Technical) For the Appellant : S/Sh S.Sunil and Anil Mishra Advocate For the Respondent : Shri H.C. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 457/- in terms of Rule 9 and Rule 18 of 2008 rules. He imposed a penalty, 50 % of the confirmed duty, on the main appellant and further penalty of ₹ 20/- lakhs on the second appellant under Rule 26 of Central Excise Rules, 2002. 2. The ld Counsel contesting the impugning order submitted that there could be no dispute on the legal position regarding availability of abatement calculated on prorata basis when the factory did not produce the notified excisable goods, during any continuous period of 15 days or more. The provisions of Section 3A and Rule 10 uses the terms shall be abated . There is no procedure for filing claim for abatement and processing the same as a refund by the excise authorities. He relied on the following decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of first paying duty based on the determination by the Jurisdictional Officers and thereafter claiming the abatement in terms of Rule 10. We note similar dispute came before the Hon ble Gujarat High Court in the case of M/s Thakkar Tobacco (P) Ltd (supra). The Hon ble High Court observed as below: 13. As noticed earlier, rule 10 of the PMPM Rules provides for statement of duty calculated on proportionate basis in case where the factory does not produce notified goods during any continuous period of fifteen days or more. However, such statement is subject to the conditions stipulated thereunder as referred to hereinabove. Once such conditions are satisfied, the assessee becomes entitled to abatement of duty to the extent of the days the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a plausible view warranting interference by this court. In the absence of any infirmity in the impugned order passed by the Tribunal, it is not possible to state that the same gives the rise to any question of law, much less, a substantial question of law. The appeals, therefore, fail and are accordingly dismissed. 6. We also refer to the decisions of the Tribunal cited by the appellants mentioned above. In fact, the decision in Som Pan Parag Products Limited (supra) has also been accepted by the department. In appellants own case, for the period from July, 2011 to August, 2015, the Tribunal followed the ratio of Som Pan Parag Products Limited (Final order No.53639-53640/2017 dated 02.06.2017). The Tribunal observed as below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 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. 7. The Tribunal also refer to the decision of Hon be Gujarat High Court in Thakkar Tobacco Products Limited (supra) and to Tribunal decision in Som Pan Parag Products Limited (supra). 8. In view of the above said position of law, we find no merit in the present impugned order. However, it has to be noted that the eligibility of abatement will arise only when the production is closed for a continuous period of 15 days or more. We note from the table annexed in the impugned order, at least in respect of one month (September, 2015), the continuous period of 15 days appears to have be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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