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2023 (6) TMI 235 - AT - Central ExciseDemand of differential duty in terms of 7th Proviso to Rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - compounded levy - differential duty has to be paid only during the period of default on the highest number of machines installed/operated based on the amended provisions or as contended by the Revenue to be calculated in terms of proviso 7 of Rule 9 of PPM (CDCD) Rules, 2008 for the entire financial year as it stood prior to 27.2.2010? HELD THAT:- The learned Commissioner vide para 24.4 of the impugned order has categorically referred to Board Clarifications, and has calculated differential duty at para 26 taking into consideration the PPM (CDCD) Rules, 2008 as amended and the Board’s clarification given vide letter F.No.341/109/2008-TRU dated 27.7.2009 and Letter No.81/17/2007-CX3 dated 20.04.2010. Board’s clarifications are very categorical and clear wherein it is stated that “Reading of proviso to Rule 7 to the Rule 9 of PPM (CDCD) Rules, 2008 makes it clear that the default for payment of duty for one month would not be treated as default for all the remaining part of the full financial year. However, the default would continue till the duty for the said month is paid”. Hence, in the instant case, the learned Commissioner has rightly demanded the differential duty along with interest for the available packing machines during the period of default. In the case of S.M. Perfumes vs. CCE, the Hon’ble High Court of Karnataka at Bangalore PRINCIPAL COMMISSIONER OF CENTRAL EXCISE VERSUS M/S. S.M. PERFUMERS PVT. LTD., [2017 (2) TMI 666 - KARNATAKA HIGH COURT] has considered these Rules and relevant provisos and has rejected the Revenue’s plea that the 7th Proviso would operate independently for the whole year. In view of the above observations and clarifications issued by the Board, there is found no substance in the Revenue’s appeal and there is absolutely no ground to set aside the Commissioner’s order - the Commissioner’s order, wherein he has redetermined the differential duty taking into account the specific clarifications given by the Board is upheld - appeal of Revenue dismissed.
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