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2016 (1) TMI 831 - CESTAT ALLAHABAD

2016 (1) TMI 831 - CESTAT ALLAHABAD - TMI - Correct amount of duty payable as per the compounding scheme - Re-determine the duty liability in terms of the deeming provision as per proviso to Rule 8 - Held that:- It is an admitted fact that the appellants did make ₹ 0.50/- pouches alongwith ₹ 1/- pouches during the impugned period. Though prima facie such situation will attract the proviso to Rule 8, when a combined reading is made of the provisions of Rule 5, Rule 9 and Rule 8, it is .....

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nth when during that month, on that machine, pouches of different RSPs have been produced. Giving emphasis to the harmonious reading of the various provisions of the said Rules of 2008, manufacturing of Gutkha pouches of ₹ 0.50/- is not to be considered as a new RSP for the purpose of proviso to Rule 8. Thus the demand made in the present case is not sustainable. - Decided in favour of assessee. - Excise Appeal No. 60416 of 2013 - Dated:- 9-12-2015 - Anil Choudhary, Member (J) And B. Ravic .....

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ng Machines [Determination of Capacity and Collection of Duty] Rules, 2008. It was noticed that during August 2008, December 2008, August 2009 and September 2009, the appellants have manufactured gutkha with Retail Sale Price (RSP) of ₹ 1/- and ₹ 0.50/-. Since they have paid duty as per the duty liability calculated on the basis of RSP of ₹ 1/- during this period, invoking the provisions of Rule 8, the Department initiated proceedings against the appellant for recovery of diffe .....

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eeming provision as per proviso to Rule 8. After a due process, the Commissioner adjudicated the case vide the impugned order and confirmed the demand of ₹ 75,00,000/- and imposed a penalty of equivalent amount. Aggrieved by this order, the appellant is before us. 2. The learned Counsel for the appellant Shri Santosh Kumar Gupta, submitted that the appellants used one single track machine to manufacture two different type of pouches with Retail Sale Price of ₹ 1/-and ₹ 0.50/- a .....

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packing machine is same. Since, the appellant made only ₹ 0.50/-pouches in addition to ₹ 1/- pouches, both falling under the same category for rate of duty, there is no ground for additional levy against them. The learned Counsel also relied on Notification No. 18/2010-CE (NT) in respect of 1st proviso to Rule 8 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines [Capacity Determination and Collection of Duty] Rules, 2010 which are similar to the impugned provisions of pr .....

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td. vs. CCE & ST, Kanpur and final order No. 51413 of 2015 - EX (DB) dated 17/4/2015 in the case of Maa Vindhya Vasini Tobacco Pvt. Ltd. vs. CCE, Kanpur. 4. The learned AR Shri A.K. Goswami reiterated the findings in the impugned order and stated that the provisions of Rule 8 are very clear and have been correctly given effect by the Original Authority. He further submitted even the retrospective amendment made in the said Rule by Finance Act, 2014 is applicable effective from 13/4/2010 only .....

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; 0.50/- pouches alongwith ₹ 1/- pouches during the impugned period. Though prima facie such situation will attract the proviso to Rule 8, when a combined reading is made of the provisions of Rule 5, Rule 9 and Rule 8, it is clear that the new RSP mentioned in the said proviso to Rule 8 should be taken to mean a new RSP which will be higher than the previous RSP of pouches manufactured and which will attract different category of serial number under Rule 5 with higher duty liability. We fi .....

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machine per month specified in Notification No. 42/2008-CE is on this deemed production only. Therefore, first proviso to Rule 8 cannot be interpreted so as to result in levy of duty on deemed production which is more than the deemed production as specified in Rule 5. In terms of Rule 5, so long as a particular single track packing machine in a particular month manufactures Gutkha pouches of RSP upto ₹ 1/- its deemed production would be 37,44,000/-. Thus, even if the machine manufactures .....

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