2015 (6) TMI 691 - AT - Central Excise

Determination of capacity of production - Appellants were manufacturing Pan Masala containing tobacco known as Gutka with two Retail Sale Prices namely, ₹ 1.00 per pouch and ₹ 0.50 per Pouch - two different RSPs of the goods manufactured by them was falling in the same slab what is the new retail sale price and whether an RSP different from existing RSP belonging to the same RSP slab of the various RSP slabs mentioned in Rule 5 can be treated as the new RPS for the purpose of the 1st proviso to Rule 8 - Held that - On going through the provision of Section 3A of Central Excise Act, 1944 and the provisions of PMPM Rules, 2008 framed under Section 3A(2) & 3A(3) of the Act, we are of the prima facie view that for the reasons given below, the new retail sale price mentioned in the 1st proviso to Rule 8 of PMPM Rules, 2008 means the retail sale price of the RSP slab, different from the RPS slab of the existing RSP - Tribunal, in case of Phool Chand Sales Corporation (2012 (11) TMI 476 - CESTAT, NEW DELHI) has also expressed the view that 1st proviso to Rule 8 of PMPM Rules applies only when pan masala/gutkha with two RSPs falling under two different slabs are manufactured on a machine in a month. - Appellant have a strong prima facie case in their favour as in our prima facie view, the impugned order is wrong and the requirement of pre-deposit of the duty demand, interest thereon and penalty for compliance with the provisions of Section 35F would cause undue hardship - Stay granted.

Summary

Issues involved:
Interpretation of Rule 8 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 regarding duty liability for manufacturing gutkha pouches of different retail sale prices (RSPs) on the same machine.

Analysis:
The appellant, a manufacturer of Pan Masala containing tobacco, known as Gutkha, faced a duty demand issue due to manufacturing gutkha pouches of different RSPs on the same packing machines. The dispute arose when the Department treated each machine manufacturing pouches of different RSPs as two machines, resulting in a significant duty demand against the appellant. The appellant contended that the first proviso to Rule 8 of the PMPM Rules should apply only when pouches of two RSPs from different slabs are manufactured on a machine, not when different RSPs from the same slab are produced. The appellant relied on a Tribunal judgment supporting their interpretation.

The Tribunal analyzed the provisions of the PMPM Rules, 2008, which charge duty on deemed production basis per operating packing machine per month for gutkha/pan masala pouches of different RSP slabs. The duty rates per machine per month are specified in the Notification No.42/2008-CE. The crux of the dispute was the definition of "new retail sale price" in the first proviso to Rule 8. The Tribunal opined that the term refers to an RSP slab different from the existing RSP slab, not individual RSPs within the same slab. Applying the proviso to cases within the same RSP slab would lead to double duty imposition on the same production.

The Tribunal emphasized that the legal fiction of the first proviso to Rule 8 is applicable only when a machine switches to manufacturing pouches of an RSP from a different slab. Applying the proviso within the same slab contradicts Rule 5, which sets deemed production based on RSP slabs, not individual RSPs. Referring to a previous judgment, the Tribunal confirmed that the proviso applies when pouches of two RSPs from different slabs are manufactured on a machine in a month.

In conclusion, the Tribunal found that the appellant had a strong prima facie case in their favor. The impugned order was deemed incorrect, and the requirement of pre-deposit of duty demand, interest, and penalty was waived to prevent undue hardship. The stay application was allowed, granting relief to the appellant for the appeal hearing and recovery of dues.