TMI Blog2017 (7) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Revenue for rejection of abatement is that the amount of admissible abatement have not been quantified by the Department and secondly the appellant had cleared Pan Samagri (a non-notified goods) during the period of closure and as such was not entitled for the abetment - Held that: - the assessee is entitled to abatement during the period of closure, if they have removed or cleared any non-notified goods during the period of closure - appellant is entitled to abatement for the period under dispute. Appeal allowed - decided in favor of appellant. - APPEAL No. E/3956/2010-EX[DB] - FINAL ORDER NO. 70806/2018 - Dated:- 11-7-2017 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Anil G. Shakkarwar, Member (Technical) Shri S. K. Pandey, Advocate, for Appellant Shri Rajeev Ranjan Joint Commissioner (AR), for Respondent ORDER Per: Anil Choudhary This appeal has been preferred by the appellant - M/s A.M.P. Products Ltd., against Order-in-Original No. 25/Commr./Lko/CX/2010 dated 30/08/2010, by which the ld. Commissioner have been pleased to confirm the demand of ₹ 1,25,29,839/- under Section 11A(2) of the Central Excise Act, 1944 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (RSP) Duty liability for the month (in Rs.) Duty actually paid during the month (in Rs.) Duty sh paid duri the month Rs.) ort ng (in Aug, 01 Pan Masala - (Rs.1) 9,25,000/- 5,00,000/- 16,75,000/- 2008 Gutkha (Rs.1) 12,50,000/- Sept, 01 Pan Masala - (Rs.1) 9,25,000/- 6,25,000/- 28,00,000/- 2008 Gutkha (Rs.1) 12,50,000/- Gutkha (Rs.0.50) 12,50,000/- Oct, 01 Pan Masala - (Rs.1) 9,25,000/- 6,45,161/- 27,79,839/- 2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008. As per ER-I for the month of October, 2008, the Noticee/appellant discharged the duty liability of ₹ 6,45,131/- only on 05/11/2008, for 16 working days for the month instead of depositing full duty, as is evident from the Form - 2 dated 11/11/2008. Further, it is stated in the Show Cause Notice that the claim for abatement for the month of August, 2008 for the month of September, 2008 was rejected by the Deputy Commissioner observing that the adjustment of the abatement by the appellant appeared irregular and in contravention of Rule 10 of the PMPM Rules, because (i) the amount of admissible abatement had not been quantified by the Department and the Department had not permitted the same and; (ii) the Noticee/appellant had cleared Pan Samagri during the period of closure, and as such was not entitled for abatement. Further penalty was proposed under Rule 17 of the Pan Masala Packing Machine (Capacity Determination Collection of duty) Rules, 2008 read with Rule 25 of Central Excise Rules, 2002. The Show Cause Notice was adjudicated on contest and the proposed duty short paid was confirmed along with penalty of ₹ 1,25,000/- as stated hereinabove. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period during which such manufacturing took place, thus, on harmonious reading of the PMPM Rules, 2008, it is evident that where the manufacturer manufactures more than one notified goods or the same goods of different RSP, then duty shall be payable with respect to the product of highest RSP for that month. The ld. counsel further relies on the Division Bench ruling of this Tribunal in the case of Trimurti Fragrance (P) Ltd. Versus Commissioner of Central Excise/Service Tax, Kanpur reported at 2015 (329) E.L.T. 680 (Tri. Delhi), wherein under the fact that appellant - M/s Trimurti Fragrance (P) Ltd. a manufacturer of Pan Masala containing Tobacco chargeable to Central Excise duty under the PMPM Rules, 2008, they were manufacturing Gutkha in retail pouches of the MRP of ₹ 1 under brand name Shikhar 1000‟ and of the MRP of ₹ 0.50 under brand name Harpal‟. They were discharging duty liability under the PMPM Rules, 2008 as per the prescribed rates. The dispute was that they filed declaration in Form - 1 under Rule 6 of the Rules for the manufacture of Gutkha of the MRP of ₹ 1 per pouch. However, on scrutiny of the returns, it was found th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of which duty at the highest RSP is applicable, if goods not declared in accordance with the provisions of said Rules, are manufactured. Accordingly, the demand was held not sustainable. This Tribunal had observed that the new retail sale price used in first proviso to Rule 8 ibid, has to be understood in the same sense in which it is understood in Rule 5 ibid, and therefore, the RSP of ₹ 0.50 per pouch cannot be treated as a new RSP, as it belongs to the same slab to which RSP of ₹ 1 belongs. The first proviso to Rule 8 ibid, cannot be given an interpretation which results in levy of duty on the quantity which is more than the quantity of Gutkha/Pan Masala pouches deemed to have been manufactured per machine per month, as specified in Rule 5 ibid. Further Section 101 of the Finance Act, 2014 have replaced the first proviso to Rule 8 as follows: provided that where a manufacturer uses an operating machine to produce pouches of different retail sale price during a month, he shall be liable to pay the duty applicable to the pouches of the highest RSP for the whole month. 5. Accordingly, following the precedent order in the case of Trimurti (supra) and ..... 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