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2016 (5) TMI 607 - AT - Central ExciseManufacturing of Pan Masala / gutkha - Seeking abatement as per provisions of PMPM Rules 2008 - for the period when there was no production i.e. from 01.07.2008 to 16.07.2008 - Held that:- the rule says that they have to give intimation at least 7 days prior non-production of goods in their factory. From the facts it is clearly proved that appellants had intimated well in advance to claim the benefit of this Rule and they were entitled to the facility of abatement in respect of non-production for 16 days in the month of July from 1st July to 16th July, 2008. In this regard it is to be noted that the appellants (their predecessor M/s Jalaram Industries) paid duty of ₹ 78,75,000/- for the month of July on 17.07.2008 for the production of 17.07.2008 to 31.07.2008 whereas the department assessed the duty for the month of July as ₹ 1,57,50,000/- without giving any abatement facility, which has been found to be not correct, when the appellants are entitled for the said abatement. Demand of excise duty - Manufacturing gutkha falling under CETA 2403990 - Period of dispute is 1st July 2008 to 16th July 2008 - Appellants took over the present manufacture unit from M/s Jalaram Industries, Bangalore, who surrendered their registration certificate and intimated the Department about their stopping of production work at the closing hours on 15.11.2008 - Held that:- when it is found that the appellants are entitled to the abatement, the demand of ₹ 78,75,000/- confirmed by the impugned order under Section 11A of Central Excise Act read with Rule 9 of PMPM Rules 2008 does not stand scrutiny of law and is hereby, therefore, set aside. Demand of interest - Appellants pleaded that as they were not knowing when they will commence production, they paid duty for the whole month manufacture when they commenced production, which in this case is 17th July (after making adjustments for the abatement) - Held that:- the laws and rules are same for everyone, whether it is the appellants or others, who are in the industry of manufacturing pan masala or other such items. The appellants cannot take the plea of not knowing when it will commence production when others in the same industry are to follow the same rules; the appellants therefore cannot claim any unfair advantage by taking this plea. Here the appellants delayed their payment for July by two days, when the Rule 9 of PMPM Rules 2008 fixes the responsibility of payment for the month of July as on or before 15th July 2008. There is clearly liability for payment of interest on the duty which was paid after the due date in the month of July 2008. This liability of interest on the said duty was confirmed by the impugned order and the same is hereby sustained under Rule 9 of PMPM Rules 2008 read with Sections 3A (2&3) of Central Excise Act 1944 is hereby sustained. Imposition of penalty - Section 11AC of the Act - Held that:- when we are setting aside the main demand imposed by the impugned order there can not be imposition of any penalty under Section 11AC read with Rule 17 of PMPM Rules 2008 and penalty therefore, is hereby dropped. - Appeal disposed of
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