TMI Blog2015 (6) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the provisions of PMPM Rules, 2008 framed under Section 3A(2) & 3A(3) of the Act, we are of the prima facie view that for the reasons given below, the "new retail sale price" mentioned in the 1st proviso to Rule 8 of PMPM Rules, 2008 means the retail sale price of the RSP slab, different from the RPS slab of the existing RSP - Tribunal, in case of Phool Chand Sales Corporation (2012 (11) TMI 476 - CESTAT, NEW DELHI) has also expressed the view that 1st proviso to Rule 8 of PMPM Rules applies only when pan masala/gutkha with two RSPs falling under two different slabs are manufactured on a machine in a month. - Appellant have a strong prima facie case in their favour as in our prima facie view, the impugned order is wrong and the requireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as ₹ 0.50 paise per pouch were manufactured, as two machines. It is on this basis, the duty demand of ₹ 31,87,50,000/- has been confirmed against the appellant along with interest on this duty under Section 11AB and penalty of equal amount has been imposed on them under Section 11 AC vide order-in-original dated 31.7.2013 passed by the Commissioner of Central Excise, Kanpur. Against this order of Commissioner, this appeal has been filed along with stay application. 2. Heard both the sides in respect of the stay application. 3. Ms. Seema Jain, Advocate, the ld. Counsel for the appellant, pleaded that the provisions of first proviso to Rule 8 apply only when pan masala/gutkha pouches of two retail sale prices (RSPs) f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing machine making pan masala/gutkha pouches of RSP from ₹ 1.51 to ₹ 2/-per pouch would be deemed to have manufactured 35,56,800 pouches per month. In terms of Rule 7 of the PMPM Rules, 2008 the duty is charged on the basis of the rates per month per machine specified in the Notification No.42/2008-CE. 6. According to Rule 8 of the PMPM Rules - In case of addition of installation or removal or uninstallation of a packing machine in the factory during the month, the number of operating packing machine for the month shall be taken as the maximum number of packing machines installed on any day during the month . According to 1st proviso to this rule, - in a case a manufacturer commences manufacturing of goods of new RSP duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber of pouches deemed to have been produced per packing machine per month for different RPS slabs. For RSP slab - upto rupee one He deemed production per operating machine per month would be 37,44,000 pouches. Similarly, if a manufacture is producing gutkha/pan masala pouches of RSP from ₹ 1.51 to ₹ 2.00 per pouch , his deemed production per machine per month would 35,56,800 pouches. Notification No.42/08-CE specifies that total Central Excise duty [basic excise duty plus additional excise duty payable under Section 85 of the Finance Act, 2005 plus NCCD payable under Section 136 of the Finance Act, 2001 plus education and secondary and higher education cess] payable per machine per month for the different RPS slabs i.e. upt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quantity which is more than the quantity of gutkha/pan masala deemed to have been manufactured per machine per month as specified in Rule 5. (3) The legal fiction of 1st proviso to Rule 8 is applicable only to those cases where a machine in a particular month switches over to manufacture of pouches of an RSP which belongs to the RSP slab different from the RSP slab of the existing RSP. Applying this proviso to the cases where the change of RSP is within the same RSP slab of the various RSP slabs mentioned in Rule 5 would be contrary to the provision of Rule 5, as Rule 5 fixes the deemed production of gutkha/pan masala pouches per month per machine according to RSP slab like upto Re. 1.00 , from ₹ 1.01 to ₹ 1.50 , from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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