TMI Blog2017 (2) TMI 666X X X X Extracts X X X X X X X X Extracts X X X X ..... tion made in the month when the duty was last paid or the available machines in the premises by verification - Therefore, so far as the availability of the packing machines are concerned, the word whichever is higher would apply but the fact remains that the liability to pay duty is for the remaining months meaning thereby the months during which the duties are not paid as per the declaration filed which can be considered as contravention to the declaration or the duties not paid on account of no declaration having been filed at all. It is not possible to accept the contention of the learned Counsel for the Revenue that the 7th proviso would operate independently for the whole year by excluding the word ‘for the remaining of the financia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not filed or in - contravention to the declaration, the manufacturing activities continued? In the legal form, the question can also be formula ted as under:- Whether 7th Proviso is connected to 6th Proviso of Rule 9 or whether 7th Proviso is independent or not? 4. As such on facts, we need not address because they are as such not required to be examined, but a t the same time the perusal of the order passed by the Tribunal shows that the Tribunal in the reasoning of the impugned order at paragraph No.12 has observed thus: 12. After considering the submissions made by both sides, we find that there is no dispute about the factual position. There is no allegation of any mis-declaration against the assessee as regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a fresh declaration in the month of April, 2011 declaring the number of packing machines intended to be used for the manufacture of pan masala. After due verification, the declaration was accepted and the annual capacity of the machine was fixed and the appellants were liable to pay duty at ₹ 6,36,50,000/- per month with effect from April, 2011. As the appellants were in default the Revenue s contention is that the appellants are liable to pay duty at this rate during the period of default in view of 7th proviso to Rule 9 of the Rules. 29. In the present case, if the contention of the Revenue is accepted then a person who had not filed a declaration regarding number of packing machines as required under Rule 6 of the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty payable on notified goods shall be paid by the 5th day of 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: 1) Provided that monthly duty payable for the month of July, 2008 shall be paid on or before 15th day of July, 2008: 2) Provided further that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: 6) Provided also that in case it is found that a manufacturer has manufactured goods of those retail sale prices, which have not been declared by him in accordance with provisions of these rules or has manufactured goods in contravention of his declaration regarding the plan or details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different retails ale prices and the number of machines intended to be used by him in each of such part or section, the rate of duty applicable to goods of highest retail sale price so manufactured by him shall be payable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the duty was last paid by him or the total number of packing machines found / available in his premises, whichever is higher. Therefore, the proviso restricts the liability to pay the duty for the remaining months meaning thereby the period during which the declaration is either not filed or the declaration is contravened. The availability of the packing machines may be assessed either on the basis of the declaration made in the month when the duty was last paid or the available machines in the premises by verification. Therefore, so far as the availability of the packing machines are concerned, the word whichever is higher would apply but the fact remains that the liability to pay duty is for the remaining months meaning thereby the mont ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
