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Dharampal Satyapal Ltd. Versus Commissioner of Central Excise –Noida

2017 (12) TMI 150 - CESTAT ALLAHABAD

Abatement - closure of factory - manufacture of Pan Masala - compounded levy scheme - whether the appellant who were manufacturer of Pan Masala and operating under the compounded levy scheme whether they are entitled to abatement for closure of a part of their factory or some of the machines and not all machines during a particular month? - Held that: - proviso 4 to Rule 9 of PMPM Rules read with Section 3A (2) clause B read with proviso provides for a charging of duty on proportionate basis, in .....

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onth if any additional duty is payable due to alteration and further provides that if any excess is paid upon recalculating the same shall be refunded to the manufacturer by the 20th of the following month. - The statute has provided specific provision for adjustment of duty - also, the appellant is entitled to rebate/refund of the excess duty paid during the period of closure of their packing machine during the month of July, 2009 as admittedly the said machine remain uninstalled for a con .....

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Dubey ( Superintendant ) A.R. ORDER Per: Anil Choudhary The issue in this appeal is whether the appellant who were manufacturer of Pan Masala and operating under the compounded levy scheme whether they are entitled to abatement for closure of a part of their factory or some of the machines and not all machines during a particular month. 2. The brief facts are that for the month of July, 2009 the appellant was producing Pan Masala of MRP as follows:- MRP No. of Machines ₹ 6/- 2 ₹ 1/- .....

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e had remained continuously out of operation for a period of 15 days or more continuously, particularly for a period of 8 days in the month of July (01st July to 8th July), under the 4th proviso to Rule 9 of PMPM Rules, 2008, which allows payment of duty calculated on pro rata basis on the number of operating machines, in the month, when a factory commences production of a new RSP in that month. The appellant also claimed admissibility of rebate for the 8 days period i.e. July 01 to July 8 in re .....

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or the month of July, 2009 under Rule 10 of the PMPM Rules, 2008 observing that the condition of closure of all the machines during the period/ month was not fulfilled. 3. Being aggrieved, the appellant preferred the appeal before the learned Commissioner (Appeals) who also pleased to dismiss the appeal agreeing with the Deputy Commissioner. Being aggrieved, the appellant is in further appeal before this Tribunal. 4. The learned Counsel for the appellant draws the attention to the provision of S .....

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y producing notified goods is in operation during a part of the year only, the annual production thereof shall be calculated on proportionate basis of the annual capacity of production. Further provided that in a case where the factor relevant to the production is altered or modified at any time during the year, the annual production shall be re-determined on a proportionate basis having regard to such alteration or modification. Further proviso to Section 3 of Section 3A provides that where, a .....

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retail sale price as specified in the table, deemed to be produced by use of one operating packing machine per month, shall be as is equal to the corresponding entry specified in column 3 of the said table. Further, Rule 7 provides the duty payable for a particular month shall be calculated by application of the appropriate rate of duty specified in the notification of the Government of India no. 42/2008-CE to the number of operating packing machines in the factory during the month. 6. Further, .....

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s for the month. 7. This clause as subsequently amended w.e.f. 13.04.2010 so as to read that the maximum number of packing machines shall be the maximum machines in a month installed in any day during a particular month. Further, provided that in case of non-working of any installed packing machine during the month for any reason whatsoever, the same shall be deemed to be operating packing machine for the month. 8. Further, Rule 9 provides for manner of payment of duty and interest providing tha .....

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number of days in that month and the number of days remaining in that month counting from the date of such discontinuation or commencement and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th of the following month and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month. 9. Further, rule 10 of the said Rules provides th .....

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nes available in factory for the said period under the physical supervision, provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and no removal of goods shall be undertaken and no removal of goods shall be effected by the manufacturer. Further provided that when the manufacturer intends to restart his production of notified goods, he shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Cen .....

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PMPM Rules read with Section 3A of the Act as according to an assessee i.e. in a case an increase in the capacity during the month the assessee will be required to pay the additional duty but in the alternate case where an assessee reduces his capacity in accordance with law he will not be entitled to any rebate/refund. Such interpretation is against the provisions of law and hence, he prays for allowing the appeal with consequential benefits. 11. The learned A.R. for Revenue have relied on the .....

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