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TMI Blog2013 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 15 of Central Excise Rules, 2002. The Notification provided for optional compounded levy scheme in respect of specified excisable goods i.e. pan masala and pan masala containing tobacco (gutkha) which provided prescribed rates of duty per pan masala/gutkha packing machine per month. 4. On 10-5-2008, the Central Excise Act, 1944 was amended by incorporating Section 3A which empowered the Central Government to deviate from charging Section 3 of the Central Excise Act, in order to protect interest of revenue, in the manner of charging duty on specified goods by way of issuing notification under said Section of the Act. 5. On 1-7-2008, Notification No. 29/2008-C.E. (N.T.) was issued under Section 3A of the Central Excise Act specifying pan masala and pan masala containing tobacco (gutkha) as notified goods on which duty shall be levied and collected under provisions of Section 3A of the Excise Act. 6. On 1-7-2008 another Notification No. 30/2008-C.E. (N.T.) was issued providing for Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 effective from 1-7-2008. These rules were made applicable to all manufacturers of pan masala and pan masala con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty of equal amount. 10. Commissioner, Central Excise, Delhi vide order-in-original dated 30-4-2010 adjudicated the show cause notices against M/s. Som Dutt Products and confirmed duty to the tune of Rs. 2,52,00,000/- along with interest amounting to Rs. 21,41,867/-.Commissioner (Adjudication) also ordered appropriation of a sum of Rs. 2,52,00,000/- deposited by the appellant M/s. Som Products under protest. 11. As regards the Revenue's appeal No. E/2920, 2922/2010 filed against the respondents M/s. Ashok Fragrance Ltd., the concerned Additional Commissioner vide two separate orders-in-original respectively dated 18-2-2009 confirmed the duty for differential duty raised by show cause notices against the respondents along with interest, however, no penalty was imposed. Respondent preferred appeals against the above referred orders-in-original which were allowed by Commissioner (Appeals) vide separate impugned orders and respective demands were dropped. 12. Show cause notice issued to M/s. Ashok & Company Pan Bahar Ltd. (respondent in Appeal No. E/2909/2009) was adjudicated by the jurisdictional adjudication Commissioner who confirmed the demand of Rs. 40 lakhs being differentia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d optional compounded levy scheme whereas Notification No. 42/2008-C.E. took away the option for the assessee and brought every manufacturer of Pan Masala and Gutkha under the net of compulsory compounded levy scheme. Thus it is clear that by introducing this notification the Govt. intended to bring all manufacturers within the net of the scheme and thus by implication had superseded the optional scheme provided under Notification No. 38/2007-C.E. Ld. A.R. has thus submitted that Revenue's appeals may be accepted and the appeals filed by the assessees against confirmation of demand of differential excise duty be dismissed. 16. Basic issue which needs consideration in these appeals is whether or not Notification No. 42/2008-C.E., dated 1-7-2008 superseded the Notification No. 38/2007-C.E. by implication or both the Not ifications were simultaneously operating during the period in dispute i.e. from 1st July to 15th July, 2008. 17. The question posed by the appeals relates to the interpretation of statute. As per accepted principles of interpretation of statute normally there is presumption against repeal of earlier statute by implication. The reason behind this Rule is based on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or line shall be deemed to be an individual machine for the purposes of calculation of the duty liability : Provided that no CENVAT credit of duty paid on any input, capital goods or input services used for manufacture of the specified goods shall be taken under the CENVAT Credit Rules, 2004 and the full amount of duty payable under this notification would be paid in cash only : Provided further that the procedure and conditions mentioned hereinafter are followed. 1. Application to avail special procedure. - (i) The manufacturer shall make an application giving the details of the packing machine installed in his factory and other particulars in the form as specified in Appendix-I to this notification to the jurisdictional Assistant Commissioner or Deputy Commissioner of Central Excise, as the case may be, and the said Assistant Commissioner or Deputy Commissioner may grant permission for the period in respect of which the application has been made : Provided that if the said permission is not granted or rejected within next two working days of receipt of application, the permission shall be deemed to have been granted. (ii) The manufacturer opting for the special proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that duty rate per machine applicable for higher retail sale price product shall be payable for all packing machines for full calendar month, in case any goods of higher retail sale price are found to have been manufactured in the said premises. (v) In case of non-working of any packing machine for any reason whatsoever, the duty for full calendar month shall be payable. (vi) The sum payable under this notification shall be calculated based upon the maximum number of packing machines installed on any day during the calendar month, irrespective of addition or removal of machines during the month and differential amount, if any, shall be payable before the end of the month. 3. Default in sum payable. - In case a manufacturer who has been granted permission under paragraph 1 does not pay the sum payable as referred to in sub-paragraph (iii) of paragraph 2, and continues to operate any packing machine, he shall be liable to pay the said sum for the remaining months of the financial year based on number of packing machines declared in the month for which duty was last paid by him or number of packing machines found installed in his premises during the said period, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer contravenes any provision of this notification in respect of specified goods, then all such goods shall be liable to confiscation, and the manufacturer shall be liable to penalty under Rule 25 of the Central Excise Rules, 2002. 8. Except as herein provided, all provisions of the Central Excise Act, 1944 and the Central Excise Rules, 2002, including those relating to recovery of dues and interest payable shall apply mutatis mutandis. Notification No. 42/2008-C.E., dated 1-7-2008 Pan masala - Rate of duty on the basis of production capacity In exercise of the powers conferred by sub-section (3) of Section 3A of the Central Excise Act, 1944, the Central Government hereby specifies on, - (i) pan masala falling under tariff item 2106 90 20 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) except the pan masala containing not more than 15% betel nut; and (ii) pan masala containing tobacco, commonly known as gutkha, falling under tariff item 2403 99 90 of the said Tariff Act (hereinafter referred to as specified goods), manufactured with the aid of packing machine and packed in pouches having retail sale prices as specified in column (2) of Table ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prices shall be deemed to be the retail sale price : Provided further that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale price declared on them, then, such declared retail sale price shall be taken into consideration for determining the rate of duty under respective S. Nos. referred to in Table-1. 2. The number of packing machines, for the purpose of computation of the rate of excise duty specified in the opening paragraph shall be determined in terms of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. 3. The duty levied and collected on such specified goods shall be the aggregate of the duty leviable under the Central Excise Act, 1944 (1 of 1944), the additional duty of excise leviable under section 85 of the Finance Act, 2005 (18 of 2005), the National Calamity Contingent Duty leviable under Section 136 of the Finance Act, 2001 (14 of 2001), Education Cess leviable under Section 91 of the Finance Act, 2004 (23 of 2004) and Secondary and Higher Education Cess leviable under Section 136 of the Finance Act, 2007 (22 of 2007) and shall be apportioned in the ratios specified in the Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 3 and it starts with non obstente clause "Notwithstanding anything contained in Section 3". That being the case, the Notification No. 42/2008-C.E. having been issued under Section 3A has an effect of superseding the Notification No. 38/2007-C.E. Thus we find that with the advent of Notification No. 42/2008-C.E., dated 1-7-2008, Notification No. 38/2007-C.E. automatically got superseded. Further if we compare the Notifications we find that Notification No. 38/2007-C.E. provided for optional scheme whereas the Notification No. 42/2008-C.E. has introduced compulsory compounded levy scheme applicable to all the manufacturers of pan masala and gutkha pouches of specific category. Excise tax structure provided in these notifications is different. Therefore, in our view the above referred two notifications are so inconsistent with or repugnant to each other that both cannot be stand together and such repugnancy arises from different criteria for charging excise duty. If both the Notifications are allowed to operate simultaneously this will obviously create an anomaly for the reason that it would discriminate between two sets of manufacturers of pan masala and gutkha, one who earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 1-7-2008 by implication superseded the Notification No. 38/2007-C.E. That being the case, there is no question of there being any restraint on the assessee for opting out of the scheme which had already been superseded. We may note that the first proviso to Clause 2 of procedure and conditions detailed in Notification No. 38/2007-C.E. provides that in case of revision in the rate of excise duty the same shall be recalculated on the basis of revised rates from the date of revision and the liability of duty leviable on the manufacturer of the specified goods from that date shall not be discharged unless differential duty is paid and in case the amount of duty so recalculated is less than the sum paid then the differential amount shall be refunded to the manufacturer. Obviously, the excise duty rates have been enhanced vide Notification No. 42/2008-C.E. as such, in view of above noted condition of Notification No. 38/2007-C.E. the assessee-appellant-respondent are liable to pay differential of excise duty based upon different rates in excise duty on account of enhancement of rate of excise duty. 22. The next contention on behalf of the assessee (appellant/respondents) is that u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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