TMI Blog2017 (11) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... y is required to be paid for the entire period for which factory was working. Since, the demand has been confirmed by the Adjudicating Authority only on the above basis, we uphold the same. Appeal dismissed - decided against appellant. - E/51580 & 52031/2014 EX (DB) - A/57581-57582/2017-EX[DB] - Dated:- 2-11-2017 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Shri Vivek Konu, Ashwani Sharma, Advocate for the appellant/respondent Shri M.R. Sharma, DR for the respondent/appellant ORDER Per: V. Padmanabhan 1. The appellant are manufacturers of chewing tobacco packed in retail pouches chargeable to central excise duty under sub heading 24039910. The dispute in this case is for the mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of RSP of ₹ 20-25 per pouch which was a new RSP. In February 2013, the appellant installed a new machine on 27.02.2013 for manufacture of the chewing tobacco pouches of the existing RSP i.e. ₹ 10-15 per pouch. The Department invoking Rule 8 of the 2010 Rules has demanded the duty on the new machines installed during June 2012 to July 2012 and February 2013 as the new machine installed for the whole month except the period for which the entire factory was closed and for which the claim for abatement has been accepted and has demanded duty on this basis. It is on this basis that the Commissioner vide impugned order dated 16.12.2013 has confirmed the duty demand of ₹ 56,62,915/- against the appellant along with interest and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this machine should be charged only for two days, that similarly during July 2012, the entire factory had worked only for 4 days and the new packing machine for manufacture of the chewing tobacco pouches of RSP 20-25 had been installed only on 31.0.2012 and hence the duty in respect of this new machine would be payable only for one day which has already been paid, that for February 2013, the entire factory had worked only for 7 days and the new packing machine for making the chewing tobacco pouches of RSP of ₹ 10-15 per pouch had been installed only on 27.02.2013 and hence in respect of this machine the duty should be charged only for 2 days and not for the entire period for which the factory had worked and that in this regard he re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... machine for manufacture of the pouches of RSP of ₹ 10-15 was installed on 29.06.2012, during July 2012, the new machine for manufacturing of the pouches of RSP of ₹ 20-25 per pouch was installed on 31.07.2012 and during February 2013 the new machine for manufacture of pouches of RSP of ₹ 10-15 per pouch was installed on 27.02.2013. In our view by virtue of the legal fiction of Rule 8 of the Rules 2010, in the case of change in the number of the operating machine during the month on account of installation or uninstallation or addition of a new machine, the maximum number of operating packing machine on any day during the months has to be treated as the operating packing machine during the month. However, in terms of 4th P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the period for which the factory was closed. The view taken by the adjudicating authority was fortified by the ratio laid down by the Hon ble Gujarat High Court in the case of Commissioner vs Thakkar Tobacco Products P. Ltd. - 2016 (332) ELT 785 (Guj) where it was observed that- 15. Besides, in the light of the findings recorded by the Tribunal to the effect that it is not disputed that the adjustments made were not more than the amounts of duties mandated to be abetted as per Rule 10 of the PMPM Rules, the action of the respondent-assessee in computing the proportionate amount of duty towards the abatement and setting it off against the duty payable in the next month does not adversely affect the revenue in any manner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id for the entire month in terms of Rule 8 of the relevant rules, but the same is to be restricted to the period for which the factory itself was working. For example, in the month of June the factory worked with four machines for five days and in addition, the newly added machine worked for two days. The Adjudicating Authority has taken the view that the newly added machine will be covered by Rule 8 and is to be deemed to have been working for the full month. However, since the factory itself was closed for 25 out of 30 days, abatement under Rule 10 will be available even for the new machine and consequently duty has been charged on the new machine for the period of five days only when the factory was working. 12. In this regard, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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