AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 209
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....hines (Capacity Determination and Collection of Duty), Rules 2008 and Chewing Tobacco Packing Machines Rules, 2010. The excise duty liability of the appellant is in terms of Section 3A of the Central Excise Act, 1944 readwith these rules, under compounded levy scheme based on production capacity of machines installed by the appellant. The issue involved in both the appeals is rejection of the claims of abatement of duty for period during which the pouch making machines installed by the appellant remained sealed for 15 days or more. The abatements were claimed in terms of Rule 10 of 2008 Rules. The said rule contained a condition to the effect that during the period of sealing of all packing machines available in the factory, no manufacturin....
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....mpugned orders as legally unsustainable and relied on various case laws in support of his submissions. 3. The learned AR submitted that the conditions of abatement are clear and are to be fulfilled by the claimant. In the present case admittedly the appellants cleared notified goods even after 2 days of sealing of the machines. This is in violation of proviso to Rule 10. Accordingly, he supported the rejection of abatement claims by the lower authorities. 4. We have heard both the sides and perused the appeal record. The dispute in the present case relates to the entitlement of the appellant for abatement of excise duty when the manufacturing unit/machines were closed and sealed for continuous period of 15 days or more. The facts of the c....
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.... which such goods are produced, by an officer not below the rank of Assistant Commissioner of Central Excise and such annual capacity shall be deemed to be the annual production of such goods by such factory; or (b) (i) specify the factor relevant to the production of such goods and the quantity that is deemed to be produced by use of a unit of such factor; and (ii) provide for the determination of the annual capacity of production of the factory in which such goods are produced on the basis of such factor by an officer not below the rank of Assistant Commissioner of Central Excise and such annual capacity of production shall be deemed to be the annual production of such goods by such factory : Provided that where a factory produci....
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....Fourth Schedule], read with any notification for the time being in force. Explanation 2. - For the purposes of this section, the expression "hundred per cent. export-oriented undertaking" shall have the meaning assigned to it in section 3.] [Explanation 3. - For the purposes of sub-sections (2) and (3), the word "factor" includes "factors".]" 6. Rule 10 of Pan Masala Rules, 2008 is as below :- RULE 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 Com....
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....uch period. Certain conditions as prescribed are to be fulfilled. These are mentioned in Rule 10. The appellants fulfilled the requirement of Section 3A readwith Rule 10. The only shortcoming is that the notified goods lying in stock were not cleared within two days of the said period. The question is whether such delay in clearance of already manufactured goods should be considered fatal to the claim of the appellant for abatements. Admittedly, there has been no manufacture of notified goods for 15 days or more. The machines were sealed by the officers and again de-sealed by them after the closure period. We note there has been no allegation of clandestine manufacture or clearance of notified goods during the impugned period. The condition....
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....oved on 29th May, 1998. In other words, no production has been taken place in respect of cold rolling machine which ceased to operate before the first July, 1996, no review could have been allowed in respect of estimated production in that machine. This is the simple logic which prevailed within the Tribunal and in our opinion rightly. No contrary view can be taken from the reading of the Rules also. We are, therefore, of the opinion that the conclusion reached by the Tribunal was valid". 9. We also note that the Tribunal in the case of CCE, Delhi - III Vs. Golden Tobacco Mfg. Co. Pvt. Ltd. - 2016 (344) E.L.T. 597 (Tri. - Del.) dealing with identical dispute upheld the order of Commissioner (Appeals) to the effect that the appellants had ....