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TMI Blog2024 (1) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... Jurisdiction Range Superintendent has de-sealed and re-sealed machine, which was operated only during the period 01-11-2012 to 15-11-2012. From the Rule 10 IBID, we do not find any provision for payment of duty for the whole month and then claim refund on account of abatement of duty. There is no dispute even by department that appellant is not liable to pay duty during period, when machine is not operated. The revenue has demanded duty for days for which the machine was not in operation - In the present case, appellant is eligible for abatement and under no circumstances duty can be demanded for the period of abatement from 16-11-2012 to 30-11-2012, when PPM [Machine] was not in operation and not produced any Notified Goods. This issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Shri P P Jadeja , Consulant for the Appellant Shri P Tripathi , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR The issue involved is whether Appellant is eligible for Abetment under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 or otherwise. 1.1 Brief facts are that appellant is a manufacturer engaged in manufacture of Notified Goods i.e. Pan Masala containing Tobacco with one Pouch Packing Machine [PPM]. Appellant was operating by Compounded Levy u/s 3A of Central Excise Act 1944 and paying duty under Pan Masala Packing Machines (Capacity Determination and Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and of duty, interest and imposition of penalty. 2. Shri P.P Jadeja, Learned Consultant appearing on behalf of Appellant reiterated grounds of Appeal and submits that the levy of central excise duty is only on the manufacture of the notified goods. Therefore, levy of excise duty is attracted only when Notified goods are manufactured. However, in this case differential duty for November 2012 has been demanded, when Notified Goods were not manufactured at all for 16-11-2012 to 30-11-2012. 2.1 He further submits that only one machine remained continuously under seal w.e.f. 16-11-2012 to 30-11-2012 and Appellant did not produce any Notified Goods. Hence, in absence of manufacture of Notified Goods, differential duty demand is not justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low:- 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 the said period under the physical supervision of Superintendent of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the machine was not in operation. The lower authorities have taken incorrect view that though Appellant had not manufactured Notified Goods from 16-11-2012 to 30-11-2012, Appellant had cleared Notified Goods already produced earlier vide Invoice Nos. 3571 to 3608 and thus having not fulfilled condition of Rule 10 allowing Abetment and accordingly Appellant is ineligible for the duty abetment for non production of goods. Such excise duty levy is only on manufacture of goods by Pouch Packing Machines operated during days in a month. 4.2 In the present case, appellant is eligible for abatement and under no circumstances duty can be demanded for the period of abatement from 16-11-2012 to 30-11-2012, when PPM [Machine] was not in operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- out of Rs. 14,00,000/- under Rule 10 ibid, for non production of Notified Goods from 16-08-2013 to 31-08-2013. Appellant had succeeded in Appeal before Commissioner(Appeals) Central Excise, Rajkot who allowed benefit of Abetment u/r 10 ibid with penalty of Rs. 5000/- u/r 27 of Central Excise Rules, 2002 vide O-I-A No. RAJ-EXCUS-000-APP-243-14-15 dated 31-12 2014. Amount of Rs. 6,95,000/- was released, after deducting penalty amount of Rs. 5000/-, imposed vide O-I-A dated 31-12-2014. Department had continued litigation even thereafter, which is concluded vide another O-I-A No. RAJ-EXCUS-000-APP-018-2021 dated 25-05-2021 by Commissioner of Central Excise(Appeals). 4.4 Thus, duty demand with interest is not sustainable in such facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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