TaxTMI 
TaxTMI 
2018 (3) TMI 18
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.... Gutka (which is nothing but Pan Masala containing Tobacco). The short levy relates to the period July, 2009. During the relevant period the appellants were subject to compounded levy scheme under Section 3A of the Central Excise Act, 1944, readwith Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008. As per Rule 5 of these Rules, certain quantities of pouches of Gutka were deemed to have been manufactured per packing machine per month, for pouches of different retail prices. Based on this deemed production, the duty was to be calculated as per Rule 7 of the said rules, readwith Notification No. 42/2008-CE dated 01/07/2008. 3. In the beginning of June 2009 the appellants were operating 9 pouch packing ma....
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..../-, a new retail sale price, had commenced on existing machines (which had been sealed in June 2009), the first proviso to Rule 8 of the said Rule would apply and it would be deemed that the 5 machines producing Rs. 2/- MRP retail pouches, were operating for the whole month. The Adjudicating Authority also held that the fourth proviso to Rule 9 would not be applicable, as contended by the appellants, since it would apply only when a new retail sale price was introduced for the first time ever (since having started working under the compounded levy scheme). 7. The Commissioner (Appeals) has also upheld the order of the Adjudicating Authority on the same grounds and hence the present appeal. 8. The learned Counsel for the appellant subm....
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.... cases where a new retail sale price has been introduced for the first time ever, and was never ever used by the manufacturer, since the introduction of the Rules, is totally misplaced. When the department is accepting that the same expression used in the first proviso to Rule 8 refers to a retail sale price which was not in use during the particular month, they cannot adopted a different interpretation of the same expression when it comes to application of the fourth proviso to Rule 9 of the said Rules. 12. A similar matter had come up before this Tribunal in the case of Trimurti Fragrances Pvt. Ltd. vs. CCE, Delhi - III - 2015 (329) E.L.T. 175 (Trib. - Del.), wherein it has been held that when a new RSP is introduced the fourth proviso....
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....e basis of total number of days in that month and the number of days remaining in that month counting from the date of such commencement and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th of the following month and in case the amount of duty so re-calculated is less than the duty for the said month, the balance shall be refunded to the manufacturer by the 20th day of the next month, whereas Rule 8 provides in case of addition or installation or removal or un-installation of a packing machine in the factory during the month, the number of operating packing machine for the month shall be taken as the maximum number of packing machines installed on any day during the month. Further, the....
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....ether the Fourth Proviso to Rule 9 would be applicable to Rule 7 read with Rule 8. As discussed above, it is Rule 7 which prescribes the formula for calculation of duty by applying the appropriate rate of duty as specified in the Notification No. 42/2008-C.E. to the number of operating packing machines in the factory during the month, and Rule 8 specifies as to how number of operating packing machines is to be determined, and according to this Rule, the number of operating packing machine in a factory for a particular month shall be the maximum number of operating packing machine installed on any day during the month. The Fourth Proviso to Rule 9 is about recalculation of duty in the circumstances when during a month the manufacturer either....
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....of the total number of days in that month and the number of days remaining in that month counting from the date of discontinuation and in case the amount of duty is so recalculated is less than the duty paid for the month the balance shall be refunded to him by 20th of the following month. This proviso also states that in case a manufacturer in a particular month commences manufacturing of the goods of a new RSP, his monthly duty liability shall be recalculated pro rata on the basis of total number of days in that month and the number of days remaining in that month counting from the date of commencement and duty liability for the month shall be discharged unless the differential duty is paid by him by next 5th of the following month. The a....