2017 (7) TMI 1119

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...."Gutkha‟ under the brand name, Sanchar. They also manufacture Sabal brand Gutkha. Apart from Pan Masala & Gutkha they also manufactured Pan Samagri classifiable under different sub-heading 24.039920 under Central Excise Tariff Act, 1985 under the brand name "Sankh‟. This product was being manufactured and cleared when there was no production of notified goods. Vide Show Cause Notice dated 07/09/2010, it was alleged that the appellant was required to pay duty on maximum number of pouch packing machines installed in their factory for manufacture of Gutkha bearing RSP Rs. 1, that the appellant was also manufacturing Pan Masala of RSP Rs. 1 and also Gutkha of RSP Rs. 0.50 on the same machine. In terms of proviso to Rule 8 of Pan Masala in PMPM Rules, 2008 in case a manufacturer commences manufacturing of goods of a new RSP during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machines for the month. Therefore, the appellant was required to pay duty as if he was manufacturing the notified goods from three separate machines, whereas admittedly all the three RSP-different products were being manufactured from the same ....

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....      Gutkha - (Rs.0.50) 12,50,000/-     Jan, 01 Pan Masala - (Rs.1) 9,25,000/- 12,50,000/- 9,25,000/- 2009   Gutkha - (Rs.1) 12,50,000/-       TOTAL   1,80,50,000/- 55,20,161/- 1,25,29,839/-   Accordingly, demand was made for duty short paid Rs. 1,25,29,839/-. So far the issue of abatement under Rule 10 of the PMPM Rules, 2008 is concerned, it is alleged in the Show Cause Notice that the appellant gave intimation in Form - 2 dated 12/08/2008 that they have deposited the duty of Rs. 12,50,000/- for the month of August, 2008 leviable on Gutkha of RSP Rs. 1. But as per the ER - I for the month of August 2008, Noticee/appellant debited Rs. 5,00,000/- only, which was said to be the duty for 12 working days of August 2008, for which pouch packing machine remained installed. As per ER-I for the month of September, 2008 Noticee/appellant did not discharge any duty liability for the month, instead they adjusted the duty suo-moto from the amount of abatement claimed to be due to them for the month of August, 2008. As per ER-I for the month of October, 20....

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.... appellant have got three packing machines installed and operating in the factory. In spite of the admitted fact that they have got only one packing machine available in the factory. 4. The learned Counsel points out that the said proviso in Rule 8 of PMPM Rules, 2008, is inconsistent and unworkable and also ultra-vires the provisions of Section 3A of the Central Excise Act, 1944. Section 3A nowhere provides for levy of duty more than the capacity of production. Further, the 6th proviso to Rule 9 of PMPM Rules, 2008, provides - that in case it is found that a manufacturer has manufactured goods of those RSP, which have not been declared by him in accordance with provisions of these rules or has manufactured goods in contravention of his declaration regarding the plan or details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different RSP and the number of machines intended to be used by him in each of such part or section, the rate of duty applicable to the goods of highest RSP so manufactured by him shall be payable in respect of all the packing machines operated by him for the period during which such manufacturin....

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....uty of the same amount, as the amount of duty which they had earlier paid. For this purpose, the Department had presumed that each of the machine installed in the factory of Trimurti during the period July, 2009 to November, 2009 had been used for manufacture of Gutkha pouches of the MRP of Rs. 1 as well as of the MRP of Rs. 0.50. This Tribunal held that the term, new retail sale price has to be understood in terms of Rule 5 of PMPM Rules, 2008 under which all RSP within a particular slab are treated as same for purpose of deemed production per month. RSP of Rs. 0.50 cannot be treated as new RSP as it belongs to same slab to which RSP of Rs. 1 belongs. The deemed production for both is same at 37,44,000 per packing machine per month, as per Rule 5 ibid First proviso to Rule 8 ibid. cannot be given an interpretation which results in higher demand per machine per month, as specified in Rule 5 ibid. M/s Trimurti had declared manufacture of Gutkha pouches of RSP of Rs. 1 and paid duty. Accordingly, this is in compliance of 6 proviso to Rule 9 ibid. and Section 101 of the Finance Act, 2014, which has replaced First proviso to Rule 8 ibid in terms of which duty at the highest RSP is appl....