TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1119
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....g Gutkha under the brand name Madhu of MRP Rs. 1 per pouch and Branded Chewing Tobacco of MRP Rs. 1.50 per pouch up to 31st March, 2011 & Rs. 2 per pouch with effect from 1st April, 2011. Both the products Gutkha & Branded Chewing Tobacco are specified/notified goods and therefore Central Excise duty is leviable on these products, on the basis of production capacity as determined under Section 3A of the Central Excise Act, 1944. Accordingly, the production and clearance of Gutkha is governed by the provisions of Pan Masala Packing Machines (Capacity, Determination & Collection of Duty) Rules, 2008 & Branded Chewing Tobacco is governed by Chewing Tobacco & Unmanufactured Tobacco Packing Machines (Capacity, Determination & Collection of Duty)....
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....5/03/2011 to 31/03/2011 amounting to Rs. 14,11,290/- on 05 Gutkha Machines & Rs. 2,70,968/- on 01 BCT operational during the said 07 days. Despite this undisputed fact, the appellant had paid duty for full month amounting to Rs. 2,62,50,000/- packing machines of BCT of MRP Rs. 1.50/-. Thus, there was excess payment of Rs. 2,48,38,710/- on Gutkha & Rs. 21,29,032/- on BCT. 7. The appellant, while discharging its duty liability for the month on April on 21 operational machines of Gutkha of MRP Rs. 1/- and 02 operational machines of BCT of MRP Rs. 2/-, adjusted the excess payment of duty made for the month of March, 2011 and paid balance amount of duty of Rs. 14,11,290/- of Gutkha & Rs. 7,20,968/- on BCT. 8. It was under these facts, an SCN d....
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....ereafter, the learned Commissioner, relying upon the decision of Larger Bench of this Hon'ble Tribunal in the case of BDH Industries Ltd. Versus. Commissioner of Central Excise (2008) 229 E.L.T. 364 (T LB) held that the act of suo-moto credit by the appellant is not in accordance with the existing law and, therefore, claim of discharging duty out of amount of credit taken suo moto is not acceptable and cannot be held as discharge of the duty. 10. The ld. Counsel for the appellant submits that the issue herein is no longer res Integra. The Hon'ble Gujarat High Court in the case of Commissioner Versus Thakkar Tobacco Products P. Ltd. reported at 2016 (332) E.L.T. 785 (Gujarat), while dealing with identical situation, have h....
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....the month of April, 2011 is irrelevant under the circumstances of this case, as none of the rules allow suo - moto adjustment of the excess payment of the duty, towards duty liability of the next month. 12. Having considered the rival contentions and on perusal of the records, I find that the issue herein is squarely covered by the ruling on of Hon'ble High Court of Gujarat in Commissioner Versus Thakkar Tobacco Products P. Ltd. (Supra). Wherein it has observed/held as follows:- "Quote"13. As noticed earlier, Rule 10 of the PMPM rule provides for abatement of duty calculated on proportionate basis in case where the factory does not produce notified goods during any continuous period of fifteen days or more. However, such abatement is sub....
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....PMPM rules, the action of the respondent-assessee in computing the proportionate amount of duty towards the abatement and setting it off against the duty payable in the next month does not adversely affect the revenue in any manner. The abatement, in the opinion of this Court, is not akin to refund and means reduction or diminution of the duty. Therefore, when the duty stands reduced to the extent provided in the rule, there is no liability to pay the same, in as much as, to that extent the duty stands abated. Therefore, if the assessee has correctly calculated the proportion of duty and set off the excess against the duty payable for the next month, it cannot be said that the said action is contrary to the statutory scheme. When the rules ....