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TMI Blog2019 (7) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Assessees are engaged in the manufacture of Pan Masala falling under Chapter Heading No.21069020 of Central Excise Tariff Act, 1985. The goods manufactured by the Assessee are governed by the provisions of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (for short PMPM Rules, 2008). During the relevant period i.e. April 2010 to November 2010, the Assessees had installed FFS packing machines in their factory for packing of pan masala into pouches against different Retail sale prices (RSPS) viz. Machine No.2 RSP Rs. 6.00, Machine No.3 RSP Rs. 2.00 and Machine No.3A is RSP Rs. 2.50. Pouches having RSP Rs. 2.50 were also being packed on Machine No.3 only which was a multi track machine. Due to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n commencement of new RSP. Therefore, reading both the said provisions simultaneously, it is clear that the basis underlines the provisions is the commencement of manufacture/packing of Pan Masala with new RSP during the month. It is his contention that in the present case, the Assessee had introduced a new RSP i.e. Rs. 2.50 on an existing machine i.e. Machine No.3 during the disputed month. Accordingly, the Assessee deemed Machine No.3 as two machines, hence, they complied with 1st proviso to Rule 8 of the said Rules. Further, the Assessees had paid monthly duty on pro-rata basis in respect of pouches having RSP of Rs. 2.50. Thus, the Assessees complied with 4th proviso of Rule 9 of said Rules. 5. Further, rebutting the Department's cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pouches of the highest RSP for the whole month. They have submitted that since retrospective amendment had been effective from 13.04.2010, therefore, duty demanded and its confirmation in the present case is incorrect. In support, they have referred to the judgment of this Tribunal in the case of Trimurti Fragrances Pvt. Ltd Vs CCE - 2015 (329) ELT 680 (T), Kay Pan Sugandh Pvt. Ltd Vs CCE - 2017 (3) TMI 982 - CESTAT NEW DELHI, S.A. Refreshers Pvt. Ltd Vs CCE - 2018 (3) TMI 18 CESTAT NEW DELHI. 7. Further, they have submitted that the findings in respect of the demand relating to pouches of RSP Rs. 6.00 is incorrect and unsustainable inasmuch as the duty is determined on the basis of number of unsealed machines lying in the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating authority on the said issue. On the issue of whether abatement would be allowed in the event only one machine become non-functional and sealed, it is his argument that in view of the clear wordings of the relevant provision i.e. Rule 10 of PMPM Rules, 2008, abatement would be allowed only when the entire 'factory' remains closed for the period specified under the relevant rules and not applicable to the machine which has been sealed. 9. We have carefully considered the submissions advanced by both sides. The issue for consideration in the present case is, if Pan Masala when packed in the pouches of different RSPs using same machine during the month, then whether duty should be paid on pro-rata basis attributable to the number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aling of machines, Revenue's contention is that if one machine is sealed and the remaining machines available in factory are functional, then abatement for the closure period for that machine is not allowed, unless the 'factory' as a whole remain closed for the period for which the abatement is claimed. The relevant Rule 10 of PMPM Rules, 2008 reads as under:- "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 Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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