TMI Blog2016 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... is in any way entitled to. Hence, the impugned order is set aside and the appellant is required to pay duty on pro-rata basis for 12 working days. - Decided in favour of assessee. - E/50211/2015 (DB) - Final Order No. 70314/2016 - Dated:- 7-6-2016 - Shri Anil Choudhary, Member (Judicial) Shri Anil G. Shakkarwar, Member (Technical) Present for the Appellant: Shri Nishant Mishara, Advocate Present for the Respondent: Shri V.R. Reddy (Assistant Commissioner) A.R. ORDER The issue in this appeal is under the facts and circumstance for the month of November 2012 the Pan Masala manufacturing Unit of the appellant was lying closed since 06.10.2012 till November 18 and was in operation from November 19 to November 30, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the entire month 1. Rs.1.01 to ₹ 1.50 29 4 116 2. Rs.1.51 to ₹ 2.00 36 7 252 Total 368 6. As the production was closed for 26 days in the month of October, the Appellant applied for abatement for 26 days. Abatement of ₹ 3,08,64,516/- was granted by the Assistant Commissioner vide Order No. 53/Abatement/CX/ACK-III/11 dated 29.11.2012, who allowed the said amount to be adjusted while discharging duty for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng machine per month (Rs. In lakhs) for Pan Masala Containing tobacco No of machines Duty leviable for the entire month (in lac) No of days the factory was opera ting Duty adjusted by Appellant on pro rata basis 1. Upto ₹ 1.01 19 6 114 12 45,60,000 2. Rs.1.51 to ₹ 2.00 36 5 180 12 72,00,000 Total 11760000 12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2012 b) The interest leviable thereon should not be demanded from them under Section 11AA of the Central Excise Act read with Rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 c) Penalty should not be imposed upon them under Rule 17 (1) of the Pan Masala Packing Machines Rules 2008 read with Section 11AC of the Central Excise Act 1944 for contravening the provisions of Rule 7 and 9 of the Pan masala Packing Machines (Capacity Determination and Collection of Duty) Rules 2008 d) Penalty should not be imposed upon them under Rule 27 of the Central Excise Rules 2002 for contravening the provisions of Rule 12 of the Central Excise Rules 2002 read with Rule 9 of the Pan Mas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 th day. The 2nd Proviso provides that if the manufacturer fails to pay the amount of duty by due date he shall be liable to pay amount standing along with interest. The 4th proviso to Rule 9 reads as follow:- Provided also that in case a manufacturer permanently discontinues manufacturing of goods of existing retail sale price or (commences manufacturing of goods of a new retail sale price during the month), the monthly duty payable shall be recalculated (pro-rate on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such discontinuation) or commencement and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they may seek abatement and make deposit of duty for actual working days only. 16. Heard Ld. A.R. for revenue, who relied on the impugned order. 17. Having considered the rival contentions we find that the issue herein is covered in favour of appellant in the earlier order of the Tribunal in Shri Flavours (supra) on all fours. Further Hon'ble Delhi High Court have held in CCE Vs. Shakti Fragrances Pvt. Ltd. reported in 2015 (324) E.L.T. 390 have held as follows - In the present case, the appellant had pressed into service Rule 10 of the PMPM Rules requires the duty calculated on a proportional basis to be abated in case the factory does not produce the notified goods during any continuous period of 15 days in a month. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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