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2015 (6) TMI 540 - AT - Central ExciseAbatement under Rule 10 of the PMPM Rules - Gutkha, Pan Masala and/Chewing Tobacco. - whether for claiming the abatement, the appellant should first pay the duty for the whole month by 5th March 2013 and should have thereafter claimed the abatement - Held that:- Department does not dispute that the appellant would be eligible for abatement under Rule 10 of the PMPM Rules for the period of closure from 1st March 2011 to 16th March 2011 - Tribunal held that in such cases for claiming abatement it is not necessary that the assessee should pay duty for the whole month and that the assessee would be required to pay proportionate duty only for the number of days for which the unit were functioning. Therefore, so far as the duty demand of ₹ 32,25,805/- is concerned, the same is prima facie not sustainable. - Decision in the case of assessee's own previous case [2015 (6) TMI 550 - CESTAT NEW DELHI] followed - Demand of duty is not sustainable. There were a total number of 21 packing machines out of which 13 machines were installed for packing of Pan Masala pouches of MRP ₹ 1 and 8 machines installed were for packing of Chewing Tobacco of MRP ₹ 1. W.e.f 24.07.2013 four new machines were installed which were used for packing of Pan Masala pouches of MRP of ₹ 4. - In terms of Rule 8 of the PMPM Rules in case of addition or installation or removal or un-installation of a packing machine in the factory during a month, the number of operating packing machines for that month shall be taken as maximum number of packing machines installed on any day during the month. Thus, in terms of Rule 8, if the number of packing machines installed in a factory, during the month varies, the maximum number of machines on any particular date would be treated as "the number of operating machines" for the purpose of calculation of duty liability under Rule 7, according to which the duty payable by a pan masala/ gutkha unit for a particular month shall be calculated by application of the appropriated rate of duty specified in the notification no. 42/08-CE to the number of "operating packing machines" in the factory during the month. Since the appellant had installed the 4 new machines on 24.07.2013 for manufacture of the new RSP of ₹ 4 per pouch in our prima facie view, the 4th Proviso to Rule 9 would be applicable. Therefore, we are of prima facie view that in respect of 4 new machines, the duty would be chargeable on prorata basis for the remaining days in the month that is, from 24.07.2013 to 31.07.2013, and as such the duty demand confirmed by the Commissioner on this basis would not be sustainable. - requirement of pre deposit of duty demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed - Stay granted.
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