TMI Blog2018 (4) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... factory was not closed. A few machines were working and production was on. It is not the case of the assessee-Appellants that entire factory was closed for a continuous period of 15 days or more during which there was absolutely no manufacturing activity and no removal of the finished goods. Therefore, abatement under Rule 10 is not available. Abatement under Rule 10 cannot be given in respect of individual machines which may have been sealed for a continuous period of 15 days or more, when during that period, other machines were functioning and factory was in operation. Other than Rule 10, there is no provision for charging duty on pro-rata basis in respect of machines which, for the reason of being sealed, were operating only during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified under Notification No. 30/2008-CE(NT) dated 01.07.2008. 5. The assessee-Appellants were paying the Central Excise Duty as per Rules on pro-rata basis i.e. only in respect of those machines which were working and only for those number of days for which they were working, but the Department has demanded the duty for the whole month and also imposed penalty. Being aggrieved, the assessee-Appellants have filed the present appeal. 6. With this background, we have heard Shri Manish Pushkarna, learned counsel for the assessee-Appellants and Shri R.K. Mishra, learned DR for the Department. 7. The learned counsel, at the strength of written submissions, mentioned that, during the period under consideration, certain number of machines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e month: Provided further 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. Rule 10. Abatement in case of non-production of goods.- In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of such goods files an intimation to this effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, at least three working days p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed form to jurisdictional Assistant/Deputy Commissioner containing the required details the main information being the number of single track and multiple track packing machines available in the factory, out of available machines, how many are installed and out of installed machines, how many are intended to be operated for production, the name of manufacturer of each machine, its maximum speed, identification number, the retail sale price of the gutka/pan masala pouches to be manufactured etc. 10. As per Rule 6(6), the assessee-Appellants can add new packing machines or uninstall one or more installed packing machines or start manufacture of pouches of a new MRP or change any other declared parameters by filing a fresh declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 7 the duty payable by a Pan Masala/Gutka manufacturing unit during a month is to be determined by applying appropriate rate of duty under Notification No. 42/2008-CE to the number of operating packing machines. Under rule 8, the number of operating packing machines for a month is the maximum number of machines installed on any particular day during the month. In terms of 2nd proviso to Rule 8, in case of non-working of an installed packing machine during the month for any reason whatsoever, the same shall be deemed to be operating packing machine for the month. In the instant case, it is not disputed by either side that during each month, during the period of dispute, certain number of machines had been got sealed, as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 10 cannot be given in respect of individual machines which may have been sealed for a continuous period of 15 days or more, when during that period, other machines were functioning and factory was in operation. 14. At this stage, it may also be mentioned that other than Rule 10, there is no provision for charging duty on pro-rata basis in respect of machines which, for the reason of being sealed, were operating only during part of the month. 15. In view of the above, we find no reason to interfere with the impugned order and the same is hereby sustained along with the reasons mentioned therein. 16. In the result, the appeal filed by the assessee-Appellants is dismissed. RoA application also stands disposed of accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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