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TMI Blog2012 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... achines installed in the factory as per the provisions of Notification No. 38/2007-C.E. dated 29-12-2007. They intimated that they were manufacturing Pan Masala containing tobacco up to Retail Sale Price (RSP) of Rs. 1.05 per pouch and paid the duty @ Rs. 12 lakhs per packing machine per month. 2. On scrutiny of ER-1 return for the month of January 2008, the department noticed that besides packing Gutkha with RSP of Rs. 1.50 per pouch, the Appellants were also manufacturing Gutkha weighing 2 gm per pouch having no printed RSP on the pouches for export purposes. The department was of the view that the Appellants had not taken into account these pouches for determining their duty liability. Revenue arrived at the RSP of such pouches man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has adopted its own method for calculating the RSP which is totally faulty and such calculation has resulted in determining the RSP at a very high level. The method adopted was to take the Tariff value declared by government and by adding the different types of excise duties payable on goods consumed in domestic tariff area when no such duty is payable on export. On the other hand if RSP is determined according to the prices at which goods are exported the price is well below Rs. 1.50 per pouch. (iii) During the relevant period they have paid duty in respect of the machines which were used for manufacturing of exported goods. They could not claim any rebate of such duty paid because of the provisions in the notification. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffixed RSP on the goods cleared for export the department has adopted reasonable means for determining RSP of such product and the method adopted is explained in the order-in-original and it cannot be faulted. Therefore, he argues that the demand of duty is perfectly legal and the adjudication order should be sustained. 6. We have considered arguments on both sides. The operative portion of Notification No. 38/2007-C.E., dated 19th December 2007 reads as under :- "In exercise of the powers conferred by rule 15 of the Central Excise Rules, 2002, the Central Government hereby specifies the excisable goods, namely, pan masala falling under tariff item 2106 90 20 and pan masala containing tobacco, commonly known as gutkha, falling under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is trying to fix, duty rate with reference to cases where RSP was not fixed. It is not as if the Appellants were required to fix RSP and they had not affixed. They were not required to fix RSP on such pouches and there is no case of the Revenue to work out RSP on such export goods based on its own method which had no sanction under law. 7. He also points out that the Appellants have already paid tax on goods which were exported which should not have been the case if the general concept of not having to pay duties on exported goods was to be implemented. It is very obvious that this notification was drafted without considering the situation that a manufacturer may be using the machine for export of the goods also. When the diffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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