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M/s. Kay Pan Sungandh (P) Limited Versus Commissioner of Central Excise, Raipur

2017 (4) TMI 982 - CESTAT NEW DELHI

Valuation - gutkha - Rule 8 - appellant case is that demand cannot be sustained for manufacture of lower RSP gutkah for machines for which duty has been paid at higher rates - Held that: - Rule provides that if the manufacturer commences manufacturing of the goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month. With the retrospective amendment in the FA, 2014, the said proviso is am .....

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a with RSP ₹ 1.50. It is also not in dispute that they have discharged the duty liability on the production capacity of these 12 machines based on the calculation that they are going to manufacture gutkha with RSP ₹ 1.50. - demand set aside - appeal allowed - decided in favor of assessee. - E/1804/2010-(DB), E/Cross/189/2010] - A/52084/2017–EX(DB) - Dated:- 3-3-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. V. Padmanabhan, Member (Technical) Rep. by Shri Aditya Kumar, Advocate .....

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and 12 machines with RSP ₹ 1.50 per pouch, respectively. During the month of September 2008, the appellant discharged the duty liability as ascertained under the Rules, based upon the functioning of 58 machines manufacturing gutkha with RSP ₹ 1.00 and 12 machines with RSP ₹ 1.50. In the mid of September 2008, the appellant started using 12 machines which manufactured gutkha of RSP 1.50, for manufacturing gutkha with RSP ₹ 1.00, after intimating to the jurisdictional depa .....

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machines. The contention of the appellant was rejected by the adjudicating authority and after following the due process, confirmed the demand raised along with interest. 3. Ld. Counsel draws our attention to the provisions of Rule 8 and also to the retrospective amendment carried out in the proviso of Rule 8. He would submit that the retrospective amendment was considered by this bench of the Tribunal in the case of Trimurti Fragrance (P) Ltd vs. CCE, Kanpur - 2015 (329) ELT 680 (Tri.-Del.) an .....

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cord, we find that the demand confirmed by the adjudicating authority is under the provisions of Rule 8, as was applicable during the relevant period. The said Rule provides that if the manufacturer commences manufacturing of the goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month. We find that with the retrospective amendment in the Finance Act, 2014, the said proviso is amended t .....

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8377; 1.50. It is also not in dispute that they have discharged the duty liability on the production capacity of these 12 machines based on the calculation that they are going to manufacture gutkha with RSP ₹ 1.50. 6. We find that identical issue came up before the bench of the Tribunal in the case of Trimurti Fragrance (P) Limited (supra) wherein the demands were raised for the months June 2009, July 2009, August, 2009, October and November 2009. The bench, after observing the provisions .....

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0.1 Thus, in terms of this retrospective amendment effective from 13th April, 2010 made by Section 101 of the Finance Act, 2014, when a manufacturer in a particular month manufacturers Gutkha of different RSPs on the same machines, his duty liability in respect of that machine would be at the rate applicable to the highest RSP. In our view, this retrospective amendment is in accordance with the 6th proviso to Rule 9 and is also in accordance with the provisions of Rule 5 and this retrospective a .....

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