Custom, Excise & Service Tax Tribunal
M/S Dharampal Premchand Ltd vs Commr. Of Central Excise, Customs & ... on 16 November, 2017
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
REGIONAL BENCH : ALLAHABAD
Ex.Appeal No.70192/17
Arising out of O/A No.NOI-EXCUS-001-APP-0950-16-17 dated 28.12.2016 passed by Commr. (Appeals) of Central Excise, Customs, Noida II
M/s Dharampal Premchand Ltd.
APPELLANT(S)
VERSUS
Commr. of Central Excise, Customs & S.Tax, Noida
RESPONDENT (S)
APPEARANCE Shri T.R.Rustagi, Adv. for the Appellant (s) Shri Sandeep Kumar Singh, Dy. Commissioner (A.R.) for the Revenue CORAM:
MRS. ARCHANA WADHWA, HONBLE JUDICIAL MEMBER DATE OF HEARING/DATE OF DECISION : 16. 11. 2017 FINAL ORDER NO.71436/2017 Per Mrs.Archana Wadhwa :
The appellants are engaged in the manufacture of chewing tobacco and were working under the Chewing Tobacco & Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. The appellants unit was closed w.e.f. 01.09.2015 to 21.09.2015 as a consequence of which the appellant was entitled to the abatement of duty for the said period in terms of Rule 10 of the said Rules. The said Rules require an assessee to deposit the duty by 5th of the next month and to claim the abatement subsequently and to adjust the same.
2. As the appellant deposited the duty on 24.09.2015, Revenue was of the view that for the period 5th September to 24th September, the assessee is liable to pay interest. Accordingly, proceedings were initiated against them resulting in passing of the present impugned order.
3. It stands brought to my notice and the issue stands decided by the precedent decision of the Tribunal in the same assessees case i.e. Dharampal Satyapal Ltd. Vs. Commr. of Central Excise, Noida reported at 2017 (10) TMI 76-CESTAT Allahabad. The Tribunal by following the Honble Gujarat High Court in the case of Commissioner Vs. Thakkar Tobacco Products Pvt. Ltd. reported at 2016 (332) ELT 785, held as under :
6.
So far the second issue of interest is concerned, we hold that the restarting of operation of the factory subsequent to 05.08.2009, amounts to increase in the number of operating packing machines in the factory during the month, and accordingly we hold that the payment of duty was required to be made by the 5th day of the next month, being September, 2009, which admittedly have been paid on such date. Accordingly, we hold that no interest is payable under Section 11AB of the Act by the appellant assessee in the fact of this case.
4. Both sides agree that the above decisions of the Tribunal are squarely applicable to the facts of the present case. In fact, the ld.Advocate draws my attention to the fact that the Tribunal directed the adjudicating authority to grant the abatement along with interest as per Rules. As such, he prays for the same treatment. He also prays it to my notice that in a subsequent order, the Commissioner (Appeals) has himself granted relief to the assessee.
5. In view of the foregoing, I set aside the demand of interest and also hold that the abatement claim of the appellant, would be dealt with along with interest as held by the Tribunal in the earlier case referred (supra). Appeal is allowed in the above terms.
Dictated and pronounced in the open Court (ARCHANA WADHWA) MEMBER (JUDICIAL) mm 7 Ex.Appeal No.70192/17