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TMI Blog2023 (9) TMI 1370X X X X Extracts X X X X X X X X Extracts X X X X ..... e and under no circumstances the full duty can be demanded for the period of abatement when the machine was not in operation. This issue has been considered in various judgments. In the case of THE COMMISSIONER VERSUS M/S THAKKAR TOBACCO PRODUCTS P. LTD. [ 2015 (11) TMI 319 - GUJARAT HIGH COURT] the Hon ble Gujarat High Court considered the same issue, where it was held that 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 nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement. In the case of COMMISSIONER OF CENTRAL EXCISE, DELHI-I VERSUS SHAKTI FRAGRANCES PVT. LTD. UNIT-II [ 2015 (10) TMI 1040 - DELHI HIGH COURT] , the Hon ble Delhi high Court also considered the similar issue where it was held that On a collective reading of Rules 9 and 10 of the PMPM Rules, the Court is of the view that the failure to make the payment of duty on fifth day of every month cannot result in depriving the assessee of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated 15 8 5 - 4 3 4 PPM Re-Sealed Date 30-8-2011 25-11-2011 30-12-2011 - 25-3-2012 17-4-2012 5 Duty payable for the whole month 12,50,000 12,50,000 12,50,000 12,50,000 19,00,000 19,00,000 6 Duty payable per day 40,322 41,667 40,322 40,322 63,333 63,333 7 Duty paid for days PPM operated 6,04,839 3,33,333 2,01,613 - 2,45,161 1,90,219 8 Differential duty demanded 6,45,161 9,16,667 10,48,387 6,45,161 6,74,194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I - 2016 (344) E.L.T. 497 (Tri. - Bang.) 3. Shri Vijay G. Iyengar, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that in the present case the appellant have followed the procedure for taking abatement of duty provided under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 which is reproduced below :- 10. Abatement in case of non-production of goods . - In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of such goods files an intimation to this effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, at least seven days prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days in the month of March and accordingly claimed that it was entitled to abatement of duty on a proportionate basis for the period when the factory was not producing notified goods and accordingly adjusted duty to that extent from the duty payable in the month of April. The contention of the Revenue is that abatement amounts to refund and, therefore, the procedure for availing refund as laid down under section 11B of the Act is required to be followed. In this regard, it may be noted that the expression abatement has not been defined anywhere in the Act or in the PMPM Rules. Therefore, the popular or dictionary meaning of the said expression is required to be looked into. In Black s Law Dictionary, the term abatement has been defined as a reduction, a decrease, or a diminution; the suspension or cessation, in whole or in part, of a continuing charge, such as rent. In the context of tax, abatement has been stated to be diminution or decrease in the amount of tax imposed. In the New Oxford Dictionary of English, abatement has been defined as the ending, reduction or lessening of something. In the Dictionary of English Language, abatement has been defined as an amount abate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nature of the said circular. A perusal of the circular dated 12th March, 2009 shows that the subject of such circular is Pre-and post-audit of abatement orders in terms of Rule 10 of the Pan Masala Packing Machine Rules, 2008 - clarification regarding . A perusal of the contents of the said circular shows that the same says that in terms of Rule 10 of the PMPM Rules, the abatement of duty is to be given in case the factory did not produce notified goods during any continuous period of fifteen days or more. The JDA/JAC has to pass an abatement order in the case. The circular further says that representations have been received from field formations regarding whether the abatement orders need to be subjected to pre- and post-audit in the same manner as refund/rebate orders. Thus, the subject matter of the said circular is as to whether abatement orders need to be subjected to pre- and post-audit. The circular further says that circulars have been issued in the context of procedure to sanction pre/post-audit of refund/rebate claims and as the abatement order is in the nature of refund, they are required to be subjected to the same administrative procedure of pre- and post-audit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (7) of Rule 96ZQ provides for abatement being allowed by an order passed by the Commissioner of Central Excise of such amount as may be specified in such order, subject to the conditions enumerated thereunder. Similarly, sub-rule (2) of Rule 96ZP provides for abatement being allowed by an order passed by a Commissioner of Central Excise of such amount as may be specified in such order subject to the fulfilment of the conditions laid down thereunder. Thus, in relation to independent processors of textile fabrics, manufacturers of non-alloy steel hot re-rolled products and manufacturers of non-alloy steel ingots, who were also assessed on the basis of annual production capacity under section 3A of the Act, there was an express provision for making an order of abatement whereas the PMPM Rules are totally silent in that regard. There is no provision for making an order of abatement under Rule 10 of the PMPM Rules. 13. As noticed earlier, Rule 10 of the PMPM Rules provides for abatement 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 abatement is subject to the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement. 16. In the light of the above discussion, it cannot be said that the view adopted by the Tribunal is not 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 rise to any question of law, much less, a substantial question of law. The appeals, therefore, fail and are accordingly dismissed. In the case of CCE, Delhi-I v. Shakti Fragrances Pvt. Ltd. Unit-II - 2015 (324) E.L.T. 390 (Del.), the Hon ble Delhi high Court also considered the similar issue and passed the following judgment : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period, if the manufacturer of such goods fulfils such condition as may be prescribed. In the present case as the assessee having complied the statutory requirement, is entitled to the benefit claimed by him. 24. The judgment in case of Thakker Tobacco (supra) having been accepted by the C.B.D.T. in its circular dated 16-2-2018, the controversy does not remain any longer as the matter is not res integra any more. 25. In view of the above, we are of the considered opinion that once the Department has accepted the judgment in case of Thakker Tobacco (supra) and has issued circular holding that assessee is entitled to abatement of duty, in the event of closure of factory for continuous period of 15 days or more, without first depositing the duty in terms of Rule 10 of PMPM Rules, 2008, the appeal of the revenue has no force and is hereby dismissed. 26. The question of law is, therefore, answered in favour of the assessee and against the revenue. 5. In view of the above High Courts judgments and observation made by us herein above, the demand is not sustainable. Accordingly, the impugned order is set aside. Appeal is allowed. (Pronounced in the open Court on 25-1-2023) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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