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2016 (11) TMI 104 - CESTAT NEW DELHI

2016 (11) TMI 104 - CESTAT NEW DELHI - TMI - Demand - manufacture of pan masala containing tobacco, commonly known as gutkha - whether the respondent had actually paid excess duty for July, 2008 and whether the same can be adjusted against the duty for the month of August, 2008? - Held that: - Revenue in their Memorandum of Appeal have only contested that instead of making suo moto adjustments, the respondent should have applied for refund of duty paid by them in excess. Otherwise, there is no d .....

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r No. 54637/2016 - Dated:- 24-10-2016 - Ms. Archana Wadhwa, Member (Judicial) Mr. H.C. Saini, DR For Appellant None For Respondent ORDER Per Ms. Archana Wadhwa Being aggrieved with the order passed by Commissioner (Appeals), vide which he has rejected the Revenue s appeal, as even the order of the original adjudicating authority is in favour of the assessee, Revenue has filed further appeal before the Tribunal. 2. I have heard Shri H.C. Saini, ld. Departmental Representative, represented Revenue .....

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by application of the appropriate rate of duty specified in the Notification No.42/2008-CE, dated 01.07.2008 to the number of operating packing machines in the factory during the month and as per Rule 9 of the PMPM Rules, the monthly duly payable on notified goods shall be paid by 5th day of the same month. In this case, the assessee during the month of August, 2008 was operating 7 numbers of packing machines to manufacture gutkha having MRP of Re.1/- per pouch. Thus, as per Rule 7 of the PMPM R .....

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387/-. The respondent on the other hand has denied the allegation and submitted that as the duty for the month of July, 2008 was also required to be paid by them by 05.08.2008 as per proviso to Rule 9 of the PMPM Rules, as they started manufacturing gutkha from 18.07.2008 in July, 2008 and the duty for July, 2008 paid in excess by an amount of ₹ 47,98,387/-, the same when added to the duty paid on 02.08.2008 (Rs.39,51,613/-) comes to ₹ 87,50,000/- and as such there was no short payme .....

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e specified as per rule 9 of the PMPM Rules and its third proviso. As such there is no short payment of duty for the month of August 2008 by the party. Regarding charge of taking suo moto credit, instead of claiming refund of duty paid in excess for the month of July 2008, I find force in party s submission that the refund of duty as per rule 10 of the PMPM Rules is to be claimed when the unit was working and duty for the month was paid in advance by 5th of the month and thereafter for any reaso .....

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aid by 5.8.08 as discussed in the previous para, there is no short payment or evasion of duty by the party. Held accordingly. 5. Being aggrieved with the said order of the Joint Commissioner, Revenue filed an appeal before the Commissioner (Appeals). The appellate authority considered the various provisions of the said PMPM Rules and rejected the appeal by observing as under:- From the above, it is clear that the respondent had paid the entire duty liability for the period 18.07.2008 to 31.07.20 .....

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