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2013 (4) TMI 1 - CESTAT, NEW DELHIPan Masala and Gutka - Duty based on capacity of production - Period of stoppage - Abatement under Rule 10 - Held that:- for claiming abatement under Rule 10, there must be total stoppage of the machines which have to be sealed in such a manner that same cannot be operated and besides this, there should be no clearances of any specified goods during the period of stoppage of production for which abatement has been claimed. - it is not the case of the appellant that during the period of abatement, there was total stoppage of production and clearances. In respect of certain periods, for which abatement has been claimed, the Department‘s allegation is that period of non-production is less than 15 days, an allegation which has not been refuted by the appellant. Under Rule 7, the duty payable for a particular month is to be calculated by applying appropriate rate of duty specified in Notification No. 42/2008-C.E., to the number of operating packing machines in the factory during the month - From Rule 8, it is clear that even if the number of operating packing machines have been changed during the month or that some machines were not working during the entire month, the number of operative packing machines shall be taken as the maximum number of packing machines installed on any day during the month and even if, a machine was not working for certain periods in a month, the same shall be deemed to be operating packing machines for the entire month The provisions of Pan Masala Packing Machines Rules, 2008 cannot be interpreted from the language used in the Notification No. 42/2008-C.E., more so, when in terms of para 2 of the Notification No. 42/2008-C.E., the number of packing machines shall be determined in terms of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 and in view of the second proviso to Rule 8, even if an installed packing machine was not working during a month, the same shall be deemed to be operating packing machines during the whole month and accordingly duty in respect of that machine would be charged as if it had been operated during the entire month and not for a fraction of the month for which it was actually operational. We, therefore, are of the prima facie view that on this point also, the appellant have not been able to establish prima facie case in their favour. This is not a case for total waiver from the requirement of pre-deposit. - Stay grated partly.
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