TaxTMI 
TaxTMI 
2023 (9) TMI 1370
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....t also availed the abatement of duty for the days the machine was sealed and not in operation. The details are given in the following chart. Sr. No. Details August, 2011 November, 2011 December, 2011 March, 2012 (upto 16-3-2012) March, 2012 (From 17-3-2012) April, 2012 1 Date of Intimation for opening Seal 28-7-2011 4-11-2011 13-12-2011 - 17-3-2012 11-4-2012 2 PPM opened to operated From - To 16-8-2011 to 30-8-2011 18-11-2011 to 25-11-2011 26-12-2011 to 30-12-2011 Not operated (upto 16-3-2012) 22-3-2012 to 25-3-2012 15-4-2012 to 17-4-2012 3 No of days PPM machine operated 15 8 5 - 4 3 4 PPM Re-Sealed Date 30-8-2011 25-11-2011 30-12-2011 - 25-3-2012 17-4-2012 5 Duty payable for the whole month 12,50,000 12,50,000 12,50,000 12,50,000 19,00,000 19,00,000 6 Duty payable per day 40,322 41,667 40,322 40,322 63,333 63,333 7 Duty paid for days PPM operated 6,04,839 3,33,333 2,01,613 - 2,45,161 1,90,219 8 Differential duty demanded 6,45,161 9,16,667 10,48,387 6,45,161 ....
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....;Shri Vijay G. Iyengar, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both sides and perused the records. We find that in the present case the appellant have followed the procedure for taking abatement of duty provided under Rule 10 of "Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008" which is reproduced below :- "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 Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, at least seven days prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for the said period under the physical s....
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.... the month of March and accordingly claimed that it was entitled to abatement of duty on a proportionate basis for the period when the factory was not producing notified goods and accordingly adjusted duty to that extent from the duty payable in the month of April. The contention of the Revenue is that abatement amounts to refund and, therefore, the procedure for availing refund as laid down under section 11B of the Act is required to be followed. In this regard, it may be noted that the expression "abatement" has not been defined anywhere in the Act or in the PMPM Rules. Therefore, the popular or dictionary meaning of the said expression is required to be looked into. In Black's Law Dictionary, the term "abatement" has been defined as a reduction, a decrease, or a diminution; the suspension or cessation, in whole or in part, of a continuing charge, such as rent. In the context of tax, abatement has been stated to be diminution or decrease in the amount of tax imposed. In the New Oxford Dictionary of English, "abatement" has been defined as the ending, reduction or lessening of something. In the Dictionary of English Language, "abatement" has been defined as an amount abated, a ded....
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.... the nature of the said circular. A perusal of the circular dated 12th March, 2009 shows that the subject of such circular is "Pre-and post-audit of abatement orders in terms of Rule 10 of the Pan Masala Packing Machine Rules, 2008 - clarification regarding". A perusal of the contents of the said circular shows that the same says that in terms of Rule 10 of the PMPM Rules, the abatement of duty is to be given in case the factory did not produce notified goods during any continuous period of fifteen days or more. The JDA/JAC has to pass an abatement order in the case. The circular further says that representations have been received from field formations regarding whether the abatement orders need to be subjected to pre- and post-audit in the same manner as refund/rebate orders. Thus, the subject matter of the said circular is as to whether abatement orders need to be subjected to pre- and post-audit. The circular further says that circulars have been issued in the context of procedure to sanction pre/post-audit of refund/rebate claims and as the abatement order is in the nature of refund, they are required to be subjected to the same administrative procedure of pre- and post-audit ....
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....der. Similarly, sub-rule (7) of Rule 96ZQ provides for abatement being allowed by an order passed by the Commissioner of Central Excise of such amount as may be specified in such order, subject to the conditions enumerated thereunder. Similarly, sub-rule (2) of Rule 96ZP provides for abatement being allowed by an order passed by a Commissioner of Central Excise of such amount as may be specified in such order subject to the fulfilment of the conditions laid down thereunder. Thus, in relation to independent processors of textile fabrics, manufacturers of non-alloy steel hot re-rolled products and manufacturers of non-alloy steel ingots, who were also assessed on the basis of annual production capacity under section 3A of the Act, there was an express provision for making an order of abatement whereas the PMPM Rules are totally silent in that regard. There is no provision for making an order of abatement under Rule 10 of the PMPM Rules. 13. As noticed earlier, Rule 10 of the PMPM Rules provides for abatement of duty calculated on proportionate basis in case where the factory does not produce notified goods during any continuous period of fifteen days or more. However, s....
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....o be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement. 16. In the light of the above discussion, it cannot be said that the view adopted by the Tribunal is not a plausible view warranting interference by this Court. In the absence of any infirmity in the impugned order passed by the Tribunal, it is not possible to state that the same gives rise to any question of law, much less, a substantial question of law. The appeals, therefore, fail and are accordingly dismissed." In the case of CCE, Delhi-I v. Shakti Fragrances Pvt. Ltd. Unit-II - 2015 (324) E.L.T. 390 (Del.), the Hon'ble Delhi high Court also considered the similar issue and passed the following judgment : "11. In the present case, the appellant had pressed into service Rule 10 of the PMPM Rules requires the duty calculated on a proportional basis to be abated in case the factory does not produce the notified goods during any continuous period of 1....