TMI Blog2015 (6) TMI 540X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Stay Nos. E/54852-54854/2014, Excise Appeal No. E/54214-54216/2014-Ex[DB] - Stay Order Nos. 51290-51292/2015-EX(BR) - Dated:- 6-4-2015 - Rakesh Kumar, Member (T) And S K Mohanty, Member (J),JJ. For the Appellant : Ms Seema Jain, Adv. For the Respondent : Mr MS Negi, DR ORDER Per Rakesh Kumar (for the Bench): The appellant are manufacturer of retail pouches of Gutkha, Pan Masala and/Chewing Tobacco. They discharged their duty liability under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 (hereinafter referred to as the PMPM Rules) and chewing tobacco and manufactured Tobacco packing machines (Capacity Determination and Collection of Duty) Rules, 2010 (hereinafter referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in respect of Chewing Tobacco, the duty was being paid under the CTUTPM Rules. The retail pouches of Pan Masala as well as of the Chewing Tobacco were of the MRP of ₹ 1 per pouch. On 24.07.2013, 4 new machines were added, which were used for manufacture of the Pan Masala pouches of MRP of ₹ 4 per pouch for which the necessary declaration was filed. The point of dispute is as to whether in respect of 4 new Pan Masala packing machines added w.e.f. 24.07.2013, the duty for the month of July is to be paid only for 8 days i.e. from 24.07.2013 to 31.07.2013 in terms of 4th Proviso to Rule 9 of the PMPM Rules, or whether in respect of these 4 machines the duty liability for the month of July is to be paid for the entire month. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal's final order no. 50223-50232/2015 dated 21.01.2015 wherein the Tribunal relying upon the judgment of Hon'ble Allahabad High Court in the case of Steel Industries of Hindustan vs. CCE Ghaziabad reported in 2013 (293) ELT 191 All, and also of Tribunal's judgments in the cases of Shri Flavours Pvt Ltd vs CCE Delhi-IV reported in 2014 (304) ELT 441, Kuber Khaini P. Ltd. vs CCE Rohtak (Final Order No. 54525/2014 dated 20/11/2014), Shri Padma Balaji Steel Pvt. Ltd. vs CCE Coimbatore reported in 2009 (246) ELT 255 (Tri Chennai), has held that for claiming the abatement for the period of closure, depositing duty for the whole month was not a pre condition and in such cases the duty would be required to be paid only for the nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of this issue is also not sustainable, that since, the appellant have strong prima facie case in their favour, the requirement of pre-deposit of the duty demand, interest and penalty by the appellant company and the requirement of pre-depsoit of penalty by the directors may be waived for hearing of their appeals and recovery thereof may be stayed. 4. Sh. MS Negi, the Ld. DR opposed the stay application by reiterating the findings of the Commissioner in the impugned order. 5. We have considered the submissions from both the sides and perused the records. 6. As regards, the dispute for the month of March 2011, in respect of which the duty demand confirmed is ₹ 32,25,805, there is no dispute that the unit was closed from 1s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in respect of these 4 new machines, the duty would be chargeable for the entire month or whether the provisions of 4th Proviso to Rule 9 would be applicable and in respect of these 4 new machines only proportionate duty would be chargeable for the period from 24.07.2013 to 31.07.2013. 7.1 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 par ..... X X X X Extracts X X X X X X X X Extracts X X X X
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