TaxTMI 
TaxTMI 
2023 (8) TMI 610
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.... whole month and closed for more than 15 days in each month by following proper procedure under the said Rules, 2010 for sealing and desealing of the machine during the period from August- 2011 to March, 2012. The appellant has also paid proportionate duty payable for the period for which the machine was working during each month in time. 1.2 The case of the department is that the duty paid on pro- rata basis is not correct stating that duty for entire month to be deposited first and then go for refund amount of duty for closure period of machine. Accordingly, the show cause notice dated 28.08.2012 was issued demanding the differential duty. The same was confirmed by the Adjudicating Authority vide Order-In-Original dated 26.09.2013 which is impugned herein. Being aggrieved by the said impugned order, the appellant filed the present appeal. 3. Shri Vijay B. Joshi, Learned Counsel appearing on behalf of the Appellant submits that there is clear provision of abatement of duty if the machine is not operating minimum of 15 days in a month. In the present case the appellant have followed the procedure which is not under dispute. The contention of the department is that first the appel....
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.... referred to as 'Act'). 2. The processed textile fabrics have been specified by the Central Government under Notification No. 41/98-C.E. (N.T.), dated 10-12-1998 as notified goods on which there shall be levied and collected a duty of excise in accordance with the provisions of Section 3A of the Central Excise Act, 1944. 3. Assessee, accordingly, had to discharge its liability from 16-12-1998 on the processed textile fabrics in terms of Rule 96ZQ of the Central Excise Rules, 1944 read with the Annual Capacity Production determined under the Hot Air Stenter Independent Textile Processors Annual Capacity Determination Rules, 1998. 4. Assessee had applied for the abatement of duty paid under the provisions of sub-section (3) of Section 3A of the Act on (1) Stenter of 'SM-ECON-2100 make which remained closed during the period from 6-11-1999 to 14-11-1999, from 10-12-1999 to 18-12-1999 and 11-2-2000 to 19-2-2000 (2) on the Stenter of PRIMATEX for the period from 10-1-2000 to 18-1-2000. 5. Sub-rule (7) of the Rule 96ZQ of the Central Excise Rules, 1944, (hereinafter referred to as 'Rules') as it existed prior to 1-3-2000 provides that when an independent processor does not produc....
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....n of India against the said judgment which was dismissed by this Court. The judgment is reported by the Madras High Court in 'Commissioner of Central Excise v. M/s. Entex Pvt. Ltd. [2015-TIOL-2123-HC-MAD-CX = 2015 (324) E.L.T. 466 (Mad.)]. 10. From the aforesaid, it becomes clear that the respondent was not supposed to pay any duty, more so, when the entire exercise was revenue neutral. It legitimately claimed the rebate. We, thus, do not find any reason to interfere with the impugned judgment of the High Court. 11. The appeal is, accordingly, dismissed." 4.1 The similar view was taken by this Tribunal in the case of Thakkar Tobacco Products Pvt. Ltd vs. Commr. of C. Ex. Ahmedabad- II - 2015 (325) ELT 228 (SC)wherein the Tribunal has taken the following decision: "6. We find that the said Rule 10 does not make any stipulation about the abatement having to be claimed by filing an application therefor although it does not imply anything to be contrary either. We find the Rule 9 of the said Rules in one of its provisos stipulates that 'in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by 20th da....
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....ication about the continued closure should be done by the jurisdictional Assistant Commissioner of Central Excise" Our attention was also drawn to CBEC Circular No.485/51/, d.15.09.1999, which was issued in relation to Rule 96ZQ as it existed prior to 28.02.1999. "2. The Board has examined the matter. Under rule 96ZQ as it existed prior to 28-2-1999, the prerequisites for grant of abatement on closure of stenter were the stenter should have been completely closed for a continuous period of not less than 7 days and the processor should give at least 3 days notice, before closure, to the Jurisdictional Deputy/Assistant Commissioner. On receipt of the notice, the stenter was required to be sealed in such a manner as prescribed by the Commissioner. If these conditions were satisfied, then the processor was eligible for abatement. Where the stenter was closed as on 16-12-1998 itself, the question of 3 days advance notice for closure did not arise. In that case, the stenter should have been sealed in the aforesaid manner for the purpose of claiming abatement. It would be proper, therefore, that where independent processor is eligible for abatement, it should be granted to him whether....
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.... of less than one month, he shall be required to pay the duty, as applicable, for the entire period of the month and may subsequently seek such claim after payment of such duty." Needless to say that such a requirement is conspicuous by its absence in Rule 10 of the said Rules. Earlier also, the Tribunal in the case of Balkrishna Textile Ltd Vs CCE Ahmedabad - 2003 (161) ELT 740 (Tri-Del), in effect held as under:- "It is clarified in the circular that 'where independent processor was eligible for abatement, it should be granted to him whether he has paid the duty first or did not pay the duty in anticipation of the order of abatement. Though Rule 96ZQ did not contain any specific provision in this regard, there was no specific provision to deny it either'. The Board, therefore, 'decided that the Commissioner should decide first whether the processor was otherwise eligible for abatement or not. In case he is eligible and he had not paid the duty, the abatement should be granted without asking him to pay the duty first or where he had paid the duty, he should be reimbursed the amount of duty paid, in terms of order of abatement issued by the Commissioner'. Therefore, the appel....