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2013 (1) TMI 250 - AT - Central ExciseCompounded levy scheme - Whether the revenue with the aid of Rule 9 of PMPM Rules, 2008 framed u/s 3A CEA, 1944 can levy and charge excise duty for the period before the commencement of production in the unit - Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 – Assessee manufactures Gutkha - Under Chapter 2403 - Rule 9 of PMPM Rules, 2008 - Excise duty on the basis of capacity of production – Held that:- Section 3 of the Excise Act is the main charging section which provides that there shall be levied and collected excise duty on excisable goods which are produced or manufactured in India. From this, it is evident that excise duty is an incidence of tax on production or manufactured of the goods. It is difficult to sustain the plea that the appellant assessee can be charged excise duty for the period during which his unit had not even commenced the production Following the decision in case of GODWIN STEELS (P) LTD. (2010 (5) TMI 322 - PUNJAB & HARYANA HIGH COURT) that it was wholly unjust for the department to recover the duty for the whole month, during which, its factory had not commenced production. When the factory of the petitioner was not in production, then obvious, it is not liable to pay the duty during the period of non-production Therefore the impugned order confirming demand for first three days of May 2009 when the production had not even commenced cannot be sustained. In favour of assessee
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