2019 (11) TMI 16 - HC - Central Excise

Benefit of abatement for non-production - whether the assessee could on their own calculate excise duty and set off the same against the duty payable in the next month? - HELD THAT - The statue, that is proviso to Sub-section (2) of Section 3A itself provides for abatement where a factory producing notified goods did not produce the same during any continuous period of 15 days or more, the duty calculated on the proportionate basis shall be abated in respect of such period, if the manufacturer of such goods fulfills such condition as may be prescribed. In the present case as the assessee having complied the statutory requirement, is entitled to the benefit claimed by him. Once the Department has issued circular holding that assessee is entitled to abatement of duty, in the event of closure of factory for continuous period of 15 days or more, without first depositing the duty in terms of Rule 10 of PMPM Rules, 2008, the appeal of the revenue has no force and is hereby dismissed . The question of law are answered in favour of the assessee and against the revenue.

Issues Involved:

1. Interpretation of Rule 7 and Rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008.
2. Duty calculation for manufacturing Gutkha of different MRP during the month of November 2012.
3. Compliance with the statutory period for tax payment as per the Supreme Court ruling.
4. Interpretation of statutory provisions for tax payment methodology.
5. Applicability of the Delhi High Court judgment in a similar case.
6. Confirmation of demand and recovery of short-paid duty along with interest and penalties.
7. Procedure for claiming abatement of duty for non-working days under Rule 9 and Rule 10 of the PMPM Rules, 2008.

Detailed Analysis:

1. Interpretation of Rule 7 and Rule 9 of the PMPM Rules, 2008:
The court examined whether the CESTAT erred in not taking cognizance of Rule 7 and Rule 9, which outline the duty calculation and payment procedures. Rule 7 specifies that duty is calculated based on the number of operating packing machines, while Rule 9 details the manner of duty payment and interest. The court emphasized that these rules must be adhered to for accurate duty computation and timely payment.

2. Duty Calculation for Manufacturing Gutkha of Different MRP During November 2012:
The respondent operated machines for Gutkha of MRP ?1.00 and ?2.00. The court noted that for the new MRP of ?1.00, duty was to be calculated pro-rata for the operational days, while for the existing MRP of ?2.00, full monthly duty was applicable. The respondent paid only ?1,17,60,000/- instead of the required ?2,25,60,000/-, resulting in a shortfall of ?1,08,00,000/-.

3. Compliance with the Statutory Period for Tax Payment:
Referring to the Supreme Court ruling in M/s Madhumilan Syntax Ltd vs Union of India, the court reiterated that tax payments must be made within the stipulated period to avoid rendering the provision redundant.

4. Interpretation of Statutory Provisions for Tax Payment Methodology:
The court discussed the Supreme Court's interpretation in State of Jharkhand vs. Ambey Cement, emphasizing that statutory requirements must be followed precisely as prescribed.

5. Applicability of the Delhi High Court Judgment:
The court observed that the judgment in CCE vs. Shakti Fragrances Pvt. Ltd. relied upon by the CESTAT was not identical to the present case, thereby questioning its applicability.

6. Confirmation of Demand and Recovery of Short-Paid Duty:
The court examined whether the demand and recovery of ?1,08,00,000/- along with interest and penalties should be upheld. The Department argued that the respondent was liable for full duty on machines producing Gutkha of MRP ?2.00, while the respondent claimed abatement for non-production days.

7. Procedure for Claiming Abatement of Duty for Non-Working Days:
The respondent claimed abatement for non-working days, arguing that they complied with Rule 10 of the PMPM Rules, 2008 by informing the Department about production stoppage and resumption. The court referred to the Gujarat High Court's judgment in Commissioner vs. Thakkar Tobacco Products Pvt. Ltd., which allowed abatement without first depositing the duty, and noted that the Department had accepted this judgment.

Conclusion:
The court concluded that the respondent complied with statutory requirements and was entitled to abatement for non-production days. The appeal of the revenue was dismissed, and the questions of law were answered in favor of the respondent and against the revenue.

← Previous Next →