THAKKAR TOBACCO PRODUCTS PVT. LTD. AND ORS. Vs. CCE
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Thakkar Tobacco Products Pvt. Ltd. And Ors.
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R.K. Singh, Member (T) -
(1.)THE appellants filed these appeals against respective impugned Orders -in -Originals. As the issue involved in these cases is common, these appeals are being disposed of by this common order.
(2.)THE facts, briefly stated, are as under: - -
"2.1 The appellants had been operating under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 (hereinafter referred to as the said Rules) and had been paying duty as per Rule 7 under the said Rules. However, in situations where after payment of duty by 5th for a particular month, if the factory remained closed for a period of 15 days or more, they became entitled to abatement under Rule 10 of the said Rules and so while paying duty for the subsequent month, they adjusted the amount of abatement and paid the balance. It is seen that all the requirement for abatement like giving due intimation, getting the machines sealed, giving the due intimation for re -start of production etc had been duly followed and that is not in dispute."
The Revenue s case is that the appellants should have paid the duty for the subsequent month in full and should have claimed the abatement separately and accordingly vide the respective adjudication orders, Revenue has confirmed the demand of duty short paid, (along with interest and penalties) in much as it was held that the amount of abatement was not allowed to be offset in this manner by the appellants.
The appellants essentially contended that as per Rule 10 of the said Rules, the duty was to be mandatorily abated if the period of closure of entire factory was for more than 15 days continuously as is evident from the words the duty calculated on proportionate basis shall be abated in respect of such period contained in the said Rule and therefore, the adjustments of abatement made by them does not tantamount to duty short paid. They referred to several judgments and Board s circulars in support of their contention.
(3.)LD . D.R., on the other hand, stated that the suo moto claim of abatement is not stipulated in Rule 10 ibid and such abatement is subject to review and that the Board vide Circular No. 267/16/2009 -CX -8, Dt. 12.03.2009 has also stated that the abatement orders, being in the nature of refund, are required to be subjected to the same administrative procedure of pre and post audit. They cited the judgments of CESTAT in the case of CCE Lucknow v. K.P. Pan Products Pvt. Ltd. : 2013 (288) ELT 478 (Tri -Del) and in the case of Shiv Shakti Agrifood Pvt. Ltd. v. CCE Delhi -I : 2012 -TIOL -1219 -CESTAT -DEL.
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