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TMI Blog2023 (6) TMI 493X X X X Extracts X X X X X X X X Extracts X X X X ..... f doubt that the matter had been remitted to the Principal Commissioner to only determine the number of days the factory of the appellant remained closed each month. The period, so determined, was then required to be dealt with in accordance with the provisions of rule 10 of the 2010 Rules and paragraph 10 of the order. If that be so, there is no manner of doubt that all that was required to be determined by the Principal Commissioner was whether the factory of the appellant remained closed for a minimum period of fifteen continuous days each month. The Principal Commissioner proceeded to examine this issue and came to a conclusion that the factory of the appellant remained closed for a minimum period of fifteen continuous days each mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture of branded chewing tobacco manufactured with the aid of packing machine was notified under Notification No. 10/2010 dated February 27, 2010 issued under section 3A of the Central Excise Act, 1944 [the Excise Act] and was made leviable to duty prescribed under the said Notification. 3. In due exercise of the powers conferred by sub-sections (2) (3) of section 3A of the Excise Act, Chewing Tobacco and Un-manufactured Tobacco Packing Machine (Determination of Capacity and Collection of Duty) Rules, 2010 [the 2010 Rules] were framed. These rules prescribed factors relevant to production, procedure for determining the capacity of production and the manner of payment of duty under rule 9 of the 2010 Rules. The relevant portion of rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be effected by the manufacturer except that notified goods already produced before the commencement of said period may be removed within first two days of the said period : Provided further that when the manufacturer intends to restart his production of notified goods, he shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, 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. 5. A bare perusal of rule 10 shows that in case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first pay the entire amount determined and then claim abatement. 9. This order dated October 23, 2015 passed by the Commissioner was assailed by the appellant before the Tribunal in Excise Appeal No. 50113 of 2016. The Tribunal, after referring to the earlier decision of the Tribunal in Trimurti Fragrances Pvt. Ltd. vs CCE, Delhi [2015 (329) ELT 175 (Tri.-Del)], did not accept the aforesaid view expressed by the Commissioner and made the following observations while allowing the appeal by way of remand : 6 . It may be mentioned that in the factory, there were only four machines. If four machines are sealed then certainly factory is closed for the purpose of production. From the impugned order, it is not clear that for what period t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the said period i.e. Nov., 2011 to March, 2012. Only two machines (1 and 2) were found working during these months for various periods as mentioned in Table-1. Accordingly, in terms of the Hon ble CESTAT Order ruling that if any machine was found working in any part of the month, then the claim will not be allowed , the abatement claim pertaining to these two machines would not be admissible to the Noticee. The Notice dated 6.11.2012 has sought to demand duty of Rs. 79,72,480/- by rejecting any claim of abatement in respect of these machines only. 12. Shri B.L. Narasimhan, learned counsel appearing for the appellant assisted by Shri S.C. Vaidyanathan submitted that once findings were recorded by the Principal Commissioner, based on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the Commissioner to only determine the number of days the factory of the appellant remained closed each month as this would decide the entitlement of the appellant to claim abatement under rule 10 of the 2010 Rules. 15. The Principal Commissioner, after a careful analysis of the factual position as also the provisions of rule 10 of the 2010 Rules, has categorically given a finding that the factory of the appellant remained closed for a period of fifteen continuous days each month. The conclusion that would follow from this finding of the Principal Commissioner is that the appellant would be justified in claiming suo motu abatement under rule 10 of the 2010 Rules, but what weighed in the mind of the Commissioner was the direction c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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