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TMI Blog2017 (11) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on the chewing tobacco pouches of various retail sale prices (RSP) being manufactured by them in terms of Chewing Tobacco and Unmanufactured Tobacco Packing Machine Rules 2010 (hereinafter referred to as 2010 Rules). In terms of the Rule 8 of the 2010 Rules, in case of addition or installation or removal or uninstallation of a packing machine in the factory during the month, the maximum number of operating packing machines for the month shall be taken as the maximum number of packing machines installed on any day during the month. In terms of the Rule 7 of the above Rules the duty payable for a particular month shall be calculated by application of appropriate rate of duty specified in the notification of the Government of India, Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e new machines has demanded duty for 5,4 and 7 days respectively, as during June 2012, July 2012 and February 2013 the entire factory had worked only for 5, 4, and 7 days respectively. Against this order of the Commissioner this appeal has been filed by assessee. 2. The main grievance is that in terms of Rule 10 there is a provision to grant abatement in the case of non production of goods on a particular machine which is sealed on due intimation. For the period for which the new machines have been used in the month, duty has already been paid. Accordingly, the assessee has claimed that the entire demand is without justification. 3. Revenue has also filed appeal against the same impugned order. It is their view that the assessee was requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,62,915/- is not correct. 6. He also relied upon Final Order No. 57105/2017 dated 11/10/2017 in respect of Shri pouches and submitted that it has been held that there will be no liability to pay duty when a machine is sealed except when the machine was working. 7. The Ld. DR justified the impugned order. He submitted that as per Rule 8, in case of addition of packing machine during the month, the number of operating packing machines for the month shall be taken as the maximum number of packing machines installed on any day during the month. He further submitted that in respect of the new machine installed in the month of July, 2012 the assessee has utilized it for manufacture of goods bearing of New RSP of Rs. 20-25 per pouch. 8. The dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P during the month, the monthly duty demand shall be calculated on pro rata basis of the total number of days in that month and the number of days remaining in that month starting from the date of such discontinuation or commencement and the duty liability for the month shall be discharged on this basis. For the three months in respect of the new machine, the appellant has already paid the duty on proportionate basis. 9. The show cause notice has been issued by the revenue taking the view that the assessee is required to pay the full duty in respect of all the machines installed in the factory during the particular month. Subsequently, it is for the assessee to claim abatement in terms of Rule 10 for the period of closure of the factory, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule, there is no liability to pay the same, inasmuch as, to that extent the duty stands abated. Therefore, if the assessee has correctly calculated the proportion of duty and set off the same against the duty payable for the next month, it cannot be said that the said action is contrary to the statutory scheme. When the rules do not provide for the manner in which duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement". 10. By following the decision of the Hon'ble Gujarat Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aimed that there is no justification for demand of any further duty. 13. After consideration of the submission made by both sides as well as on perusal of record, we are of the view that he view taken by the Adjudicating Authority by a conjoined reading of Rule 8 and 10 merits to be upheld. Rule 8 provides that if any new machine is installed on any day during the month, it is to be considered as operating for the full month. However, Rule 10, which deals with abatement, provides for non-payment of duty in respect of the factory which is closed for more than 15 days. In respect of the three months in dispute, it is not in dispute that the factory was closed for more than 15 days. By reading together Rule 8 and 10 we reach the conclusion th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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