The Ahmedabad bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that customs duty payable in advance for days of new retail price.
The production of a new retail sale price of assesee, Zest Packers Pvt Ltd was done from 28.12.2011 to 31.12.2011,The question was whether the duty for the entire month has to be paid or duty on pro-rata basis only for four days, when the production has taken place.
Shri R.K Agrawal, Superintendent (AR) appearing on behalf of the revenue Appellant, reiterated the ground of appeal. He further submitted that as per the provision of Chewing Tobacco and Un-manufactured Tobacco Packing Machines (capacity of determination and collection of duty) Rules, 2010 the respondent was required to pay the duty for the entire month in advance and thereafter should have claimed the abetment for the days when the production was closed. The Commissioner has wrongly dropped the demand.
Shri Devashish K Trivedi, Counsel, appearing on behalf of the respondent submitted that theTribunal has set aside the demand and allowed the appeal in Order dated 22.07.2015 which has been accepted by the department as no further appeal was filed either in the High Court or the Supreme Court.
The department contended that appellant was supposed to pay duty for the entire month of December 2011.Thereafter, they should have claimed abatement by filing a refund claim. This shows that department is in agreement that for the closer days of the production duty per se is not payable. Therefore, it is a Revenue neutral situation, even if the appellant pay the duty and undisputedly entitled for claim of abatement or pay the duty only for the production days, that is four days.
Rule 6(2) of the Rules 2010 provides determination and pass order concerning annual capacity of production of the factory. It is already stated that Rule 10 of the Rules 2010 for abatement in case of production of goods has no relation to determination of annual capacity of production.
In the case of Thakkar Tobacco Products Pvt .Ltd ,tribunal set aside demand made through the impugned orders.
A two member bench comprising Mr. Ramesh Nair, Member (Judicial) and Mr. C L Mahar, Member (Technical) observed that the Tribunal dealing with the same issue even against the impugned order for the portion of demand confirmed, the Tribunal has set aside the demand and allowed the appeal of the respondent. Therefore, there is no substance in the revenue’s appeal.
The CESTAT upheld the order to the extent of demand involved in the present revenue’s appeal. The revenue’s appeal is dismissed accordingly.
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