2017 (12) TMI 1079

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....he provisions of Chewing Tobacco & Unmanufactured Tobacco Packing Machines (Capacity Determination & Collection of Duty) Rules, 2010 (hereinafter referred to as CTUT Packing Machines Rules, 2010). 2. The brief facts of the case are that the appellant is engaged in the manufacture of excisable goods namely; Chewing Tobacco, which are notified goods under Section 3A of the Central Excise Act, 1944 and was paying duty in terms of CTUT Packing Machines Rules, 2010. They filed an abatement claim amounting to Rs. 1,95,76,333/- before the Assistant Commissioner on 01/07/2015 on the ground that in the month of June, 2015, their machine was not used for the production of finished goods/notified goods during the period 01/06/2015 to 19/06/2015 (19 d....

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....challan, after delay). Accordingly, the Assistant Commissioner reduced the amount of interest Rs. 2,93,645/- from the sanctioned refund amount Rs. 1,95,76,333/- and issued refund cheque for the reduced amount of Rs. 1,92,82,688/-. 4. Being aggrieved by the said order, the appellant preferred appeal before the ld. Commissioner (Appeals) on the grounds that it is incorrect to reduce the amount of abatement, once found admissible, on any ground whatsoever. That the action taken with regard to appropriation of the so-called amount of interest is illegal and arbitrary. It has been passed in flagrant violation of the principles of natural justice, as no Show Cause Notice was issued by the Assistant Commissioner prior to making suo-motu appropria....

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.... account of addition or installation of packing machines, the differential duty amount, if any, shall be paid by the 5th day of the following month. 9. In the facts of this case, the sealing of the 12 machines of the appellant occurred prior to 01.07.2013. The machines were inoperative during 01.07.2013 to 07.07.2013. The machines were unsealed and reinstalled on 08.07.2013. This is evident from the abatement order dated 20.09.2013. In the circumstances under the third proviso to Rule 9, the duty was payable by the 5th of the August, 2013. Duty was in fact paid on 27th July, 2013. There is therefore no delayed payment of duty warranting levy of interest under Section 11AA of the Act. 10. On the analysis above, the appellant must succeed....