TMI Blog2018 (12) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, that machine would have to be treated as two machines. The dispute is as to what is a "new retail sale price". The new retail sale price would mean the retail sale price which had not been declared in respect of that machine in the Form-I declaration. Identical issue decided in the case of M/S. KAY PAN SUNGANDH (P) LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2017 (4) TMI 982 - CESTAT NEW DELHI], where it was held that Rule provides that if the manufacturer commences manufacturing of the goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the month. Appeal allowed - decided in favor of appellant. - APPEAL No. E/51728/2014 & 52629/2015-EX[DB] - A/72568-72569/2018-EX[DB] - Dated:- 4-10-2018 - Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Rupsh Kumar Shri Aditya Kumar, Advocate for Appellant Shri Pawan Kumar Singh, Supdt (AR), for Respondent ORDER Per: Archana Wadhwa The appellant are manufacturers of Gutkha and panmasala of different RSP. The period of dispute in this case is Aug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal has been filed. 2. Heard both the sides. 3. Shri Rupesh Kumar, Advocate, the ld. Counsel for the appellant, pleaded that in this case, for the months of August, September, October and November, 2009, in respect of one machine which was being used for manufacture of panmasala retail pouches, the appellant in the Form-I declarations filed by them, had declared that this machine would be used for manufacture of panmalasa pouches of RSP of ₹ 2 as well as ₹ 3, that this is not the case where a manufacturer, in the middle of the month, had started manufacture of the pouches of an RSP which was not earlier being manufactured by them, that the first proviso to Rule 8 of PMPM Rules becomes applicable only when a manufacturer commences the manufacture of the goods of a new RSP during a month on an existing machine and only in that situation the manufacture of the pouches of a new RSP would be deemed to be an addition in the number of operating packing machines, that the expression new retail sale price used in the first proviso to Rule 8 means that the goods of the RSP which were earlier not being manufactured on that machine, and that since in this case, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applying the rate applicable to RSP of ₹ 2, as this machine, which have been used for manufacture of panmasala pouches of RSP of ₹ 2 as well as ₹ 3, has to be treated as two machines. 6. Rule 8 of the PMPM Rules is reproduced below:- 8, Alteration in number of operating packing machines.- In case of addition or installation or removal or uninstallation of a packing machine in the factory during the month, the number of operating packing machine for the month shall be taken as the maximum number of packing machines installed on any day during the month: Provided that in case a manufacturer commences manufacturing of goods of a new retail sale price during the month on an existing machine, it shall be deemed to be an addition in the number of operating packing machine for the 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. 6.1 From perusal of this Rule, it is clear that first proviso to Rule 8 becomes applicable when on an existing packing machine, the manufacturer commences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th April, 2010 by the following:- 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 the retail sale price for the whole month. 10.1 Thus, in terms of this retrospective amendment effective from 13th April, 2010 made by Section 101 of the Finance Act, 2014, when a manufacturer in a particular month manufacturers Gutkha of different RSPs on the same machines, his duty liability in respect of that machine would be at the rate applicable to the highest RSP. In our view, this retrospective amendment is in accordance with the 6th proviso to Rule 9 and is also in accordance with the provisions of Rule 5 and this retrospective amendment to Rule 8 of PMPM Rules, shows that it was not the intention of the Government that in a case where in a month a particular machine is used to produce Gutkha pouches of more than one RSP, each RSP is to be treated as separate machine for the purpose of charging duty, but the intention was to charge duty in such a situation at the rate applicable to the highest RSP. For this reason also, there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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