TaxTMI 
TaxTMI 
2016 (1) TMI 108
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.... Duty) Rules 2008, which came into existence vide Notification No. 30/2008 CE(NT) dated 01.07.2008. The said Rules provide a detailed procedure as also various provisions for payment of duty of excise on the basis of capacity of production in terms of the said rules. Briefly speaking the capacity of production was required to be determined in relation to the number of packing machines installed in a manufacturer's premises and put to use. 3. It is seen that the appellants were declaring the number of packing machines which were to be used for production of the said product in a particular month at the start of the month itself. The duty liability was being discharged by them accordingly based upon the number of packing machines so used and declared by them. It may not be out of context to mention here that appellants were found to be using the same number of machines which were being declared by them in their various declarations filed from month to month. It may also be observed that in terms of the said rules, number of machines which were not put to use in a particular month are required to be sealed by the Revenue. In the instant case, the machines not declared in the decl....
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....the provisos. "9. Manner of payment of duty and interest. - The monthly duty payable on notified goods shall be paid by the 5th day of same month and an intimation in Form - 2 shall be filed with the Jurisdictional Superintendent of Central Excise before the 10th day of the same month: Provided that monthly duty payable for the month of July,2008 shall be paid on or before 15th day of July, 2008: Provided further that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount: Provided also that in case of increase in the number of operating packing machines in the factory during the month on account of addition or installation of packing machines, the differential duty amount, if any, shall be paid by the 5th day of the following month : Provided also that in case a manufacturer permanently discontinues manufacturing of goods of existing retail sale price or ....
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....d Rule refers to a situation where a manufacturer fails to pay the amount of duty on due date, he shall be liable to pay the outstanding amount along with interest at the rates prescribed by the Central Govt till he pays the amount in question. There is no further reference to any additional liability on the assessee to pay the duty even in respect of the machines which have not been actually put to use by him during that particular month. The said proviso simpliciter makes the assessee liable to pay the duty along with interest. However, Revenue has referred to Proviso-7, which also talks about the assessee having not discharged his duty liability. The contention of the Revenue is that in terms of the said Proviso, where an assessee does not discharge his duty liability in time, his liability for the subsequent months would be dependent upon the total number of packing machines found available in his premises at any time thereafter, if the number of such machines is higher than the number of machines used by the assessee for production. It is seen that initially show-cause notice was issued to the appellant proposing confirmation of demand of duty based upon the total number of m....
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....al delay of deposit of the admitted liability, then the same would have found its place immediately after Proviso-2 relating to the same situation. Having found its place after Proviso-6, it has to be interpreted that Proviso-7 is referring to a situation as available in Proviso-6. 10. On the other hand, learned JCDR submits that there is no force in the submissions of the learned advocate that Proviso-7 is independent of Proviso-2 and it is not related to a situation covered in Proviso-2. Merely because the said two provisions are separated by 5 provisos in between, it cannot be said that the same relates to a different situation. He submits that there is no justification to show that Proviso 6 & 7 have to be read in consonance. For the above purposes, he refers to and relies upon the Board's Circular No. 341/09/2008 TRU dated 27.07.2009. He submits that the said circular makes it clear that if there is default in payment of duty by an assessee then the duty liability for the subsequent months would be determined based upon the available number of packing machines installed and used in the factory, during the preceeding or succeeding months. 11. In his rejoinder learned advo....
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....between Member (Technical) and Member (Judicial) in the above decision of the Tribunal in the case of Sanket Food Products (supra). Learned Member (Technical) by adopting identical arguments which stand adopted before us by the Revenue held against the assessee. Learned Member (Judicial) differed with the said order and the matter was placed before the 3rd Member. The 3rd Member while dealing with the issue observed as under: "25. The Revenue confirmed the demand in view of the proviso to proviso 7 to Rule 9 of the Rules. The admitted facts of the case are that the appellants were in default in making payment of duty as per the order of the proper officer in pursuance the declaration filed by the appellant under Rule 6 of the Rules.The appellant filed a fresh declaration in the month of April, 2011 declaring the number of packing machines intended to be used for the manufacture of pan masala. After due verification, the declaration was accepted and the annual capacity of the machine was fixed and the appellants were liable to pay duty at Rs. 6,36,50,000/- per month with effect from April, 2011. As the appellants were in default the Revenue's contention is that the appellants ....