TaxTMI 
TaxTMI 
2019 (11) TMI 16
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.... rate of duty specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.42/ 2008-CE, dated the 1st July, 2008 to the number of operating packing machines in the factory during the month. 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 day of the same month: Provided that monthly duty payable for the month of July, 2008 shall be paid on or before 15th day of July, 2008: Provided further that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount: Provided also that in case of increase in the number of operating packing machines in the factory during the month on accoun....
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...., he shall be liable to pay the monthly duty based on the number of operating packing machines declared in the month for which duty was last paid by him or the total number of packing machines found available in his premises at any time thereafter, whichever is higher: Provided also that in case a new manufacturer commences production of notified goods in a particular month, his monthly duty payable for that month shall be calculated pro-rata on the basis of the total number of days in the month and the number of days remaining in that month starting from the date of commencement of the production of such notified goods and shall be paid within five days of such commencement. (ii) Whether the Hon'ble CESTAT has erred in not taking cognizance that neither the party is a new manufacturer nor they have changed their Retail Sale Price (RSP) of 05 machines, which were used for the manufacture of Gutkha of MRP of Rs. 2.00 during the month of November, 2012. During the month of November, 2012, the parety operated the following machines for 12 days (i.e. 19.11.2012 to 30.11.2012) * 06 Pouch Packing Machines of Gutkha of MRP Rs. 1.00; and * 05 Po....
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....vs Union of India- 2007(210) ELT 484 (SC), the Apex Court held that once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. (iv) When the Apex Court in the case of State of Jharkhand & Others vs. Ambey Cement & Anr. [ 2004(178) ELT 055(SC)], has held that it is a cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. (v) When the judgment of the Hon'ble High Court, Delhi relied on by the CESTAT in the instant case in the case of CCE vs. Shakti Fragrances Pvt. Ltd. [2015(324) E.L.T. 390] does not appear to be identical to the instant case. (vi) Whether, in view of the provisions of Rule 7 & 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rule, 2008 and aforementioned rulings by Apex Court, the confirmation of demand & recovery of the short paid duty amounting to Rs. 1,08,00,000/- for the month of November, 2012 alongwith interest and penalties should have been upheld by the Hon'ble CESTAT? 3. On 19.9.2019, le....
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....000/- from abatement of Rs. 3,08,64,516/-, sanctioned earlier on 29.11.2012, an amount of Rs. 1,91,04,516/- remained from the abated amount. The assessee informed the Department of the payment by way of adjustment on 6.12.2012 by submitting Form-2. 11. The Department was of the opinion that assessee started manufacturing Gutkha on new retail price, i.e., MRP of Rs. 1.00 during November, 2012, hence, duty on the same was payable on pro-rata basis, but, since Gutkha of MRP Rs. 2.00 was not a new retail price, hence duty on the same was payable for the entire month and not for a period of 12 days provided under Rule 10 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008 (hereinafter called as "PMPM Rules, 2008"). The Superintendent, Central Excise through letters dated 4.3.2013 and 12.3.2013 required the assessee to deposit the central excise duty of Rs. 1,08,00,000/-. The said letters were replied by assessee, but a show cause notice was issued on 25.9.2013 proposing for recovery of excise duty of Rs. 1,08,00,000/- along with interest and penalty. The said show cause notice was adjudicated by Commissioner vide order dated 29.9.2014 confi....
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....ame month as the MRP Rs. 2.00 was not a new retail price for the party. According to him total excise duty liability for the month of November, 2012 was Rs. 2,25,60,000/- but the assessee had paid only Rs. 1,17,60,000/- and there was a short fall of Rs. 1,08,00,000/-. 14. Learned counsel for the Department further submitted that Rule 10 of PMPM Rules,2008 provides for abatement in the case of non-production of notified goods and abatement is subject to condition stipulated therein and the assessee cannot on his own calculate the excise duty and set off the same against the duty payable under Rule 9 of the PMPM Rules, 2008. 15. Sri Agarwal submitted, that settled principle of law is that once the statute requires to pay tax within stipulated period then such payment is to be made within that period, otherwise it would render the provision redundant and nugatory. 16. Replying the averments made by counsel for the Department, Sri Nishant Mishra, learned counsel appearing for the respondentassessee submitted that sub-section 3 of Section 3-A of the Central Excise Act provides that if a factory producing notified goods did not produce the same during any continuous period of 15....
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....the amount is to be refunded and an express provision is provided therefor, whereas rule 10 does not make any such provision. It may be noted that insofar as rule 96ZO of the Central Excise Rules is concerned, sub-rule (2) thereof expressly provides for claim of abatement being made under sub-section (3) of section 3A of the Act, which would be allowed by an order passed by the Commissioner of Central Excise of such amount as may be specified in such order. Similarly, sub-rule (7) of rule 96ZQ provides for abatement being allowed by an order passed by the Commissioner of Central Excise of such amount as may be specified in such order, subject to the conditions enumerated thereunder. Similarly, sub-rule (2) of rule 96ZP provides for abatement being allowed by an order passed by a Commissioner of Central Excise of such amount as may be specified in such order subject to the fulfillment of the conditions laid down thereunder. Thus, in relation to independent processors of textile fabrics, manufacturers of non-alloy steel hot re-rolled products and manufacturers of non-alloy steel ingots, who were also assessed on the basis of annual production capacity under section 3A of the....
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....efore, when the duty stands reduced to the extent provided in the rule, there is no liability to pay the same, inasmuch as, to that extent the duty stands abated. Therefore, if the assessee has correctly calculated the proportion of duty and set off the same 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 do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement." 20. Sri Mishra also placed reliance upon circular issued by the Ministry of Finance (Department of Revenue) Central Board and Excise & Customs, New Delhi dated 16.2.2016 wherein the Department has accepted the judgment of the High Court of Gujarat in case of M/s Thakkar Tobacco (supra). Relevant portion of the circular No.1063/2/2018-CX dated 16.2.2018 is extracted hereunder: "7.1 Department has accepted the aforementioned or....