9911796707
TMI Blog2015 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... M Rules"). The dispute in this case is in respect of only two months - March, 2011 and July 2013. 1.2 During March, 2011, the appellant's unit was closed from 01.03.2011 to 16.03.2011. From 17.03.2011 to 31.03.2012 the factory was working. For the period from 01.03.2011 to 16.03.2011, the appellant had claimed abatement of duty in terms of Rule 10 of the PMPM Rules. In terms of PMPM Rules and CTUTPM Rules, an assessee is required to pay duty in respect of the goods to be produced during a month on the basis of the number of packing machines installed, by 5th of that month, and accordingly the duty liability for the month of March, 2011 was required to be discharged by the appellant company by 5th March, 2011. Since the unit was closed from 01.03.2011 to 16.03.2011, the duty was paid only on 21.03.2011 and the duty paid was only the proportionate duty for the number of days for which the unit functioned, that is, from 17.03.2011 to 31.03.2011. The department was of the view that the appellant should have first paid the duty for the whole month by the due date i.e. on 05.03.2011 and, thereafter, should have claimed the abatement for the period of closure and that they could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt company under Rule 17 of the PMPM Rules, penalty of Rs. 9,00,000/- each was imposed on Shri Pradeep Kumar Aggarwal and Shri Roshan Aggarwal, Directors of the company. Against this order of the Commissioner these appeals have been filed. 2. Heard both the sides. 3. Mrs. Seema Jain, Advocate, the ld. Counsel for the appellant, pleaded that so far as the first point of dispute as to whether in respect of the month of March, 2011, the appellant were required to first pay the duty for the entire month by the due date and then claim the abatement for the period of closure from first March, 2011 to 16th March, 2011 or whether the appellant could pay duty on pro-rata basis only for the number of days for which the factory had functioned during that month, the issue stands decided in the appellant's favour by the 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 2113 (293) ELT 191(AM.) and also the Tribunal's judgments in the cases of Shree Flavers Pvt. Ltd. vs. CCE, Delhi-IV reported in 2014 (304) ELT 441 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides for certain exceptions to the Rule cannot be given an interpretation to make it otiose, that Hon'ble Bombay High Court in the case of Shree Satpuda Tapi Parisar Sahkari Sakhar Karkhana Ltd. vs. Union of India reported in 2014 (307) ELT 699 (Bom.) has held that the function of the proviso is to qualify the generality of the main provision by providing an exception and taking out as it were from the main provision, a portion, which but for the proviso, would fall within the main provision and that while construing a provision having a proviso, these have to be read together without making either of them redundant or otiose and that in view of this, Rule 8 of the PMPM Rules cannot be given an interpretation which would make the Fourth Proviso to Rule 9 redundant. She, therefore, pleaded that the impugned order confirming duty demand of Rs. 1,51,35,453/- in respect of the 4 machines installed w.e.f. 24.7.2013 by holding that duty in respect of these machines would be chargeable for the whole month is not correct. 4. Shri Yeshpal Sharma, the ld. DR, defended the impugned order by reiterating the findings of the Commissioner in it. With regard to the duty demand of Rs. 1,51,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shree Flavers Pvt. Ltd. vs. CCE, Delhi-IV reported in 2014 (304) ELT 441 - Kuber Khani P. Ltd. vs. CCE, Rohtak (Final Order No. 54525/2014 dated 20th November, 2014) Shri Padma Balaji Steel Pvt. Ltd. vs. CCE, Koimbatore reported in 2009 (246) ELT 255 (Tri.Chennai) and also in the appellant's own case for the previous period decided by this Tribunals final order No.50223-50232/2015 dated 21.01.2015. In view of this the duty demand of Rs. 32,25,805/- would not be sustainable. However, since the due date for payment of duty was 5th of the month and the appellant paid the duty only on 21.03.2011, the appellant in respect of the net duty payable by them, would be liable to pay interest on it as per the provisions of PMPM Rules for the period of delay. 7. Next dispute is in respect of July, 2013 for which the duty demand of Rs. 1,51,35,483/- has been confirmed. During this period, the appellant in terms of Declaration made in Form - A for July, 2013 had declared that they would be operating 21 packing machines - 13 for the manufacture of Pan masala pouches of MRP of Rs. 1 and 8 machines for manufacture of chewing tobacco pouches of MRP of Rs. 1. W.e.f. 24.07.2013, the appellant ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by using the machines N1, N2, N3 & N4 respectively the total duty liability for the month would be P1 N1 + P2 N2 +P3 N3 + P4 N4. 8. Rule 9 of the PMPM Rules titled "manner of payment of duty and interest" provides that "the monthly duty payable on notified goods shall be paid by 5th of the same month and an intimation in Form - 2 shall be filed with the Jurisdictional Superintendent of Central Excise before the 10th day of the same month. First proviso prescribes that for the month of July, 2008 the duty shall be paid by 15th day of July 2008. Second Proviso to Rule 9 provides that in case the duty is not paid by the due date, interest at the rate notified by the Government under section 11 AA/11AB would be payable for the period starting with first day after the due date till the date of actual payment of outstanding amount. Third Proviso deals with a situation where the number of operating packing machines has been increased as a result of which the duty liability of the assessee as determined under Rule 7 has been increased and in terms of third Proviso, the differential duty, if any, shall be paid by the 5th of the following month. However, the Fourth Proviso, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribes the formula for calculation of duty by applying the appropriate rate of duty as specified in the Notification No.42/2008-CE to the number of operating packing machines in the factory during the month, and Rule 8 specifies as to how number of operating packing machines is to be determined, and according to this Rule, the number of operating packing machine in a factory for a particular month shall be the maximum number of operating packing machine installed on any day during the month. The Fourth Proviso to Rule 9 is about recalculation of duty in the circumstances when during a month the manufacturer either permanently discontinues the manufacture of the goods of an existing RSP or commences the manufacture of goods of a new RSP. Thus the Fourth Proviso to Rule 9 is in respect of calculation of duty payable for a month and has to be treated as qualifying the provisions of Rule 7 read with Rule 8. Hon'ble Bombay High Court in the case of Shree Satpuda Tapi Parisar Sahkari Sakhar Karkhana Ltd. vs. Union of India reported in 2014 (307) ELT 699 (Bom.) in para 13 of its judgment regarding the construction of the proviso has held as under:- "the general rule in construing a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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