Decided on July 22,2015

Zest Packers Pvt. Ltd. And Ors. Appellant
Cce, Ahmedabad -Ii Respondents


P.K.DAS - (1.)A common issue is involved in these appeals and therefore, all are taken up together for disposal.
(2.)The relevant facts of the case, in brief, are that the Appellants were engaged in the manufacture of Jarda Scented Tobacco and Chewing Tobacco, classifiable under Sub Heading No. 2403.9930 and 2403.9910 respectively of the First Schedule to the Central Excise Tariff Act, 1985. In exercise of powers conferred under Sub -Sections (2) and (3) of Section 3A of the Central Excise Act, 1944, the Central Government had framed the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules 2010 (for short Rules 2010), under Notification No. , dt. 27.02.2010 as amended. The Appellants had paid duty as per Rules 2010 and availed the benefit of abatement of duty in case of non -production of goods during any continuous period of 15 days or more, in terms of Rule 10 of the said Rules 2010. According to the Revenue, the abatement in Rule 10 is not automatic or suo motu and it is in the nature of refund and the Appellants are required to pay the duty as determined under Rule 9 of the said Rules 2010 by 5th day of the same month. Thereafter, Department would allow the abatement after following the administrative procedure of pre and post audit. By the impugned orders, the Adjudicating authorities confirmed the demand of duty alongwith interest and imposed penalty on the Appellants.
(3.)THE learned Advocates on behalf of the Appellants drew the attention of the Bench to the relevant portion of the Rules 2010. They submit that the Rules 2010 is an independent provision for determination of the capacity of production and collection of duty. It is submitted that the Rule 10 of the said Rules 2010 read with Proviso to Section 3A(3) of the Central Excise Act, 1944, had allowed the Assessee to avail abatement of duty calculated on a pro -rata basis in respect of specified periods where the factory did not produce the goods and followed the procedures as prescribed in Rules. In the present appeals, the factory did not produce the notified goods during any continuous period of 15 days or more and rightly availed abatement. It is submitted that the issue is covered by the decision of the Tribunal of this Bench in the case of Thakkkar Tobacco Pvt. Ltd. & Others Vs CCE Ahmedabad -II 2015 -TIOL -690 -CESTAT -AHM. It is further submitted that the same view was taken by the Delhi Bench of the Tribunal in the case of Trimurti Fragrances Pvt. Ltd. & others Vs CCE Delhi - : III 2015 -TIOL -1099 -CESTAT -DELand Godfrey Philips India Ltd. Vs C.C.E. & S.T. Ghaziabad, 2015 -TIOL -1216 -CESTAT -DEL. He also relied upon the decision of Hon'ble Allahabad High Court in the case of Steel Industries of Hindustan Industrial Area Vs CCE Ghaziabad : 2013 (293) ELT 191 (All.).

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