2017 (4) TMI 982 - AT - Central Excise

Valuation - gutkha - Rule 8 - appellant case is that demand cannot be sustained for manufacture of lower RSP gutkah for machines for which duty has been paid at higher rates - 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. With the retrospective amendment in the FA, 2014, the said proviso is amended to read as 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. In the case in hand, it is not disputed that in mid of September 2008, under intimation to the department, the appellant had manufactured gutkha pouches with RSP ₹ 1.00 on the 12 machines which they were using for manufacture of gutkha with RSP ₹ 1.50. It is also not in dispute that they have discharged the duty liability on the production capacity of these 12 machines based on the calculation that they are going to manufacture gutkha with RSP ₹ 1.50. - demand set aside - appeal allowed - decided in favor of assessee.

Summary

Issues:
Interpretation of Rule 8 of Pan Packaging machines (Capacity & Collection of Duty) Rules, 2008 regarding duty liability for manufacturing goods with different retail sale prices on the same machines.

Detailed Analysis:
Issue 1: Interpretation of Rule 8
The case involved a dispute regarding the duty liability of a manufacturer under Rule 8 of the Rules for manufacturing gutkha with different retail sale prices on the same machines. The appellant had initially paid duty based on manufacturing gutkha with a higher retail sale price but later switched to producing gutkha with a lower retail sale price on some machines. The Revenue issued a show cause notice demanding duty on the gutkha manufactured with the lower retail sale price. The appellant contended that Rule 5 and Rule 8 did not apply for accounting the demand. The adjudicating authority confirmed the demand, leading to this appeal.

Analysis:
The Tribunal analyzed the provisions of Rule 8 and the retrospective amendment made in the proviso of the Rule. The retrospective amendment specified that a manufacturer using a machine to produce goods with different retail sale prices in a month would be liable to pay duty based on the highest retail sale price for the entire month. The Tribunal noted that the appellant had indeed switched to manufacturing gutkha with a lower retail sale price on some machines during September 2008, while initially using those machines for higher priced gutkha. The Tribunal referred to a similar case where the demand was raised for different months, and the Tribunal held that duty liability should be based on the highest retail sale price due to the retrospective amendment.

Issue 2: Judicial Precedent and High Court Decision
The appellant's counsel cited a previous case where a similar issue had been considered by the Tribunal, and the demand was not sustained due to the retrospective amendment. The Revenue's representative reiterated the findings of the adjudicating authority.

Analysis:
The Tribunal considered the previous case and the decision of the High Court of Allahabad, which upheld the Tribunal's decision regarding the retrospective amendment and duty liability based on the highest retail sale price. The Tribunal found that the issue was settled by the High Court and, therefore, upheld the appellant's argument based on the previous case and the retrospective amendment.

Conclusion:
The Tribunal concluded that the demand confirmed by the adjudicating authority was based on Rule 8 as applicable during the relevant period. However, considering the retrospective amendment and the previous case law, the Tribunal ruled in favor of the appellant. The impugned order was set aside, the appeal was allowed, and the cross objections filed by the Revenue were disposed of.