TaxTMI 
TaxTMI 
2016 (8) TMI 344
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....er the appellant is required to pay the pro-rata duty for 12 working days or is liable to pay the duty for the whole month and there after seek rebate for non working days under the proviso to Rule 9 of Pan Masala Packing Machine (Capacity determination and collection of duty) Rules 2008. 2. The brief facts are:- that the appellant is registered dealer and paying duty on manufacturer of Gutkha under Section 3A of the Act read with the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008, hereinafter referred to Pan Masala Packing Machines Rules 2008 (for short). 3. The appellant vide letter dated 13.9.2012 intimated the Department that it intended to start commercial production w.e.f. 15.9....
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.... Rs. 1.00 with the aid of 6 pouch packing machines. Gutkha of MRP Rs. 2.00 with the aid of 5 pouch packing machines from 19.11.2012 8. The Assistant Commissioner vide letter dated 16.11.2013 directed Superintendent Central Excise to unseal and install the 11 machines in the midnight of 18.11.2012. 9. The appellant from 19.11.2012 started the manufacture of pouches of MRP Rs. 1.00 and of MRP Rs. 2.00 10. For the month of November, the Appellant calculated that it was liable to pay Central Excise duty of Rs, 1,17,60,000/- on pro rata basis for 12 days ( 19.11.2012 to 30.11.2012). The Appellant therefore adjusted Rs, 1,17,60,000/- from the Abatement of Rs. 3,08,64,516/- sanctioned to it earlier vide Order 29.11.2012 by the....
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.... entire month, instead of Rs. 72 lakhs paid by the appellant on pro rata basis. The Supdt. Central Excise vide letter dated 04.03.2013 and 12.3.2013 requested the Appellant to deposit differential Central Excise duty of Rs. 1,08,00,00/- with interest. 13. The appellant replied that it was not liable to pay duty for the entire month. Thereafter a Show Cause Notice dated 25.9.2013 was issued to the Appellant asking it to Show Cause why - a) The Central Excise duty short paid amounting to Rs. 1,08,00,000/- (Rupees one crore eight lakhs only) should not be demanded and recovered from them under Section 11A of the Central Excise Act 1944 read with Rule 9 of the Pan Masala Pa....
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....n Masala P.M. Rules 2008. 15. The Id. Counsel further urges that from a plain reading of the 4th proviso to Rule 9 with Rule 7 it is evident that in the facts of the appellant they were required to pay the duty pro-rata on the basis of the total numbers of days in that month they have operated the Packing Machines„ Being aggrieved the appellant is before the Tribunal and urges the Ld. Commissioner have totally misconceived the provision for Pan Masala P.M. Rules, 2008. Under the provision Rules 9 read with Rule 7 of Pan Masala P.M. Rule, 2008 provides that the duty of particular month has to be calculated, to the rate with the number of operating Pan Masala P.M. in the factory during the month. There is no dispute out o....
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.... that there is not illegality in taking abetment suo-moto under the admitted facts (no. of working days) and under the proviso to Section 3A of the Act, which reads as follows - "Provided that where a factory producing notified goods did not produce the notified goods during any continuous period of 15 days or more, the duty calculated on a proportionate basis shall be abated in respect of such period if the manufacturer of such goods fulfils such conditions as may be prescribed." 15.3 Further Rule 10 of P.M. P.M. Rules provides for abatement without prescribing that order of abatement will be passed by the Revenue, as both sealing and unsealing of Packing Machine is done by the department. 15.4 Further urges that....