- (1.) WE have heard Shri B.K.S. Raghuvanshi, learned counsel appearing for the Central Excise department. This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 arises out of claim for abatement filed by the respondent for a period of 11 days in the month of December, 2011 for which it has deposited the excise duty for the entire month under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. The claim was rejected by the Order -in -Original dated 30 -3 -2012 on the ground that the period of 11 days was less than 15 days in the month of December, 2011. In appeal the Commissioner (Appeals), Customs and Central Excise, NOIDA held on 25 -7 -2012 that the party had applied for closure for a continuous period beginning from 21 -12 -2011 to 20 -2 -2012, which was more than 15 days in accordance with Rule 10 of the Rules of 2008. A part of the period of closure, which fell within the month of December, 2011, would not disentitle the party for abatement as the period of 15 days should be continued even if the period is falling in different calendar months.
(2.) THE Commissioner of Customs, Central Excise & Service Tax, NOIDA filed an appeal in the Customs, Excise and Service Tax Appellate Tribunal, which was rejected on 6 -11 -2012, with the findings as follows: - - The dispute in the present appeal relates to the abatement claim of Rs. 6,38,710/ - claimed by the respondent for the period 21 -12 -2011 to 31 -12 -2011. The said claim was made by the respondent in terms of the provisions of Rule 10 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. The said abatement claim was rejected by the original adjudicating authority on the ground that inasmuch as the unit was closed for 11 days only in the month of December, the respondents do not fulfil the criteria laid down under Rule 10. However on appeal Commissioner (Appeals), by taking note of the fact that the unit was closed continuously from 21 -12 -2011 to 20 -2 -2012 the claim of abatement has to be allowed. On the other hand, it is Revenue's contention that inasmuch as in the month of December, 2011 the unit was dosed for a period less than 15 days, abatement cannot be allowed. I find that the Tribunal in the case of Commissioner of Central Excise Lucknow v. K.P. Pan Products (P) (Ltd.) - : 2012 (278) E.L.T. 683 (Tri. -Delhi) has held that Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - Rule 10 ibid does state that a continuous period falling under different calendar month should be split into periods falling under each month and abatement determined separately. The Tribunal further observed that so long as days of closure are continuous, even if days fall in different calendar month, it will constitute one continuous period. Inasmuch as in the present appeal there is no dispute that the factory was closed continuously for a period from 21 -12 -2011 to 20 -2 -2012, the Commissioner (Appeals) has rightly considered the closure of/the factory as being more than 15 days and has rightly allowed the abatement claim for the period of 11 days following in month of December. In view of the above, I do not find any infirmity in the impugned order of Commissioner (Appeals). Revenue appeal is accordingly rejected. The Central Excise department has filed this appeal on the following substantial questions of law: - - (A) Whether, the CESTAT is correct in holding that so long as days of closure are continuous, even if falls in different calendar month, it will constitute one continuous period under Rule 10 of the Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 for allowing abatement of duty? (B) Whether, the CESTAT is correct in allowing abatement out of the duty calculated and paid for a particular calendar month under Rule 7 of the Rules ibid for the period of closure subsequent to that month for which no duty has been assessed and paid? (C) Whether, under Rule 10 of said Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 the abatement of duty can be allowed for the period of closure subsequent to the month for which no duty has been calculated or paid under Rule 7? (D) Whether, in the instant case when the production remained closed for a period of eleven days only during the month for which duty was assessed, the abatement of duty can be allowed when Rule 10 says for closure of production for minimum 15 days?
(3.) THE respondent applied for closure from 21 -12 -2011 to 20 -2 -2012 for a period, which was more than 15 days and was falling within three calendar months beginning from December, 2011 to February, 2012. The respondent applied for abatement and refund for 11 days in the month of December, 2011 of Rs. 6,38,710/ - deposited in excess for the month of December, 2011.;