TaxTMI 
TaxTMI 
2023 (6) TMI 493
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter to the adjudicating authority, has resulted in the filing of this appeal. 2. The appellant during the period from November 2011 to March 2012 was engaged in the manufacture of 'Chewing Tobacco' with the aid of 'Form Fill Sealing Packing Machine'. The manufacture of branded chewing tobacco manufactured with the aid of packing machine was notified under Notification No. 10/2010 dated February 27, 2010 issued under section 3A of the Central Excise Act, 1944 [the Excise Act] and was made leviable to duty prescribed under the said Notification. 3. In due exercise of the powers conferred by sub-sections (2) & (3) of section 3A of the Excise Act, 'Chewing Tobacco and Un-manufactured Tobacco Packing Machine (Determination of Capacity and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tral Excise, in the manner that the packing machines so sealed cannot be operated during the said period : Provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and no removal of notified goods shall be effected by the manufacturer except that notified goods already produced before the commencement of said period may be removed within first two days of the said period : Provided further that when the manufacturer intends to restart his production of notified goods, he shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, of the date from which he would restart production, whereupon th....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 9. This order dated October 23, 2015 passed by the Commissioner was assailed by the appellant before the Tribunal in Excise Appeal No. 50113 of 2016. The Tribunal, after referring to the earlier decision of the Tribunal in Trimurti Fragrances Pvt. Ltd. vs CCE, Delhi [2015 (329) ELT 175 (Tri.-Del)], did not accept the aforesaid view expressed by the Commissioner and made the following observations while allowing the appeal by way of remand : "6. It may be mentioned that in the factory, there were only four machines. If four machines are sealed then certainly factory is closed for the purpose of production. From the impugned order, it is not clear that for what period the four machines were closed. In other words, when the facto....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ch, 2012. Only two machines (1 and 2) were found working during these months for various periods as mentioned in Table-1. Accordingly, in terms of the Hon'ble CESTAT Order ruling that 'if any machine was found working in any part of the month, then the claim will not be allowed', the abatement claim pertaining to these two machines would not be admissible to the Noticee. The Notice dated 6.11.2012 has sought to demand duty of Rs. 79,72,480/- by rejecting any claim of abatement in respect of these machines only." 12. Shri B.L. Narasimhan, learned counsel appearing for the appellant assisted by Shri S.C. Vaidyanathan submitted that once findings were recorded by the Principal Commissioner, based on the provisions of rule 10 of the 2010 Rul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the number of days the factory of the appellant remained closed each month as this would decide the entitlement of the appellant to claim abatement under rule 10 of the 2010 Rules. 15. The Principal Commissioner, after a careful analysis of the factual position as also the provisions of rule 10 of the 2010 Rules, has categorically given a finding that the factory of the appellant remained closed for a period of fifteen continuous days each month. The conclusion that would follow from this finding of the Principal Commissioner is that the appellant would be justified in claiming suo motu abatement under rule 10 of the 2010 Rules, but what weighed in the mind of the Commissioner was the direction contained in the operative part of the orde....