TaxTMI 
TaxTMI 
2017 (2) TMI 666
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....llowed the appeals. 2. We have heard Mr. Jeevan J. Neeralgi, learned Counsel appearing for the appellant and Mr. G. Shivadass, learned Counsel for the respondent. 3. We may at the outset record that the questions formulated by the appellant - Revenue, is not happily worded. But if at all arise, the same would be as under:- "Whether duty payable under proviso 7 to Rule 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (hereinafter referred to as 'the Rules' for the sake of brevity) is limited to remainder of the period for which the declaration is not filed or in - contravention to the declaration, the manufacturing activities continued?" In the legal form, the question can also be formula ted....
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....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 verificati....
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....earing for the Revenue was that proviso 7 is independent and it is no where connected with proviso 6 of Rule 9 of the Rules. Whereas, the learned Counsel appearing for the Assessee contended that proviso 7 is to be read with proviso 6, since it pertains to continuing with the manufacturing activity without filing declaration or in contravention to the declaration already filed. 6. In order to appreciate the contention, we may r e- produce Rule 9 with whole the proviso has reads as under: "RULE 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 ....
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....to the manufacturer by the 20th day of the following month: 5) Provided also that if there is revision in the rate of duty, the monthly payable shall be recalculated pro-rata on the basis of the total number of days i n that month and the number of days remaining in that month counting from the date of such revision and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month and in case the amount of duty so recalculate d is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: 6) Provided also that in case it is found that a manufacturer has manufactured goods of those retail sale prices....
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....s manufactured the goods but has not filed declaration in accordance with the provisions of this rule or the manufacturer has manufactured the goods in contravention to his declaration. 8. Whereas, 7th proviso further provides that whether the duty was payable but is not paid and the manufacturer continues to operate in packing machine, the manufacturer would be liable to pay duty for the remaining month of the financial year on the number of packing machines declared for the month for which the duty was last paid by him or the total number of packing machines found / available in his premises, whichever is higher. Therefore, the proviso restricts the liability to pay the duty for the remaining months meaning thereby the period during whic....