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TMI Blog2016 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand of duty by adopting Proviso-7 to Rule 9 and by discarding the assessee's contention that incase of delayed payment of duty it is only Proviso-2 which has to be adopted. Apart from the fact that we agree with the learned advocate's contention that Proviso 7 essentially refer to a situation envisaged by Proviso-6 and will have no applicability to a situation which stands separately considered by Proviso 2 to the said Rule, we find that the issue stands covered by the majority decision of the Tribunal in the above referred situation. Inasmuch as the facts in the present case are identical to the facts involved in the case of Sanket Food Products [2014 (9) TMI 665 - CESTAT MUMBAI (LB)], we find no reasons to take a different view - Decided in favor of assessee. - E/2444/2010-DB, E/2445/2010-DB, E/2446/2010-DB - - - Dated:- 12-10-2015 - Archana Wadhwa, Member (J) And Ashok K. Arya, Member (T) For the Appellant : Mr G Shivadas, Adv For the Respondent : Mr Ajay Saxena, AR ORDER Per Archana Wadhwa All the three appeals are being disposed of by a common order as the issue involved is identical. 2. After hearing, at length both sides represented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timation to the range Superintendent by 10th of that month. The returns are required to be filed in the subsequent month. 5. The appellants have been observing all the above said procedures. However, there were delays in depositing the amount by the appellant ranging from one day to 28 days in various months covered during the period in question. Such duties were being deposited by them subsequently along with interest leviable thereon for the number of delays which have occurred in a particular month. The said demand of interest by the appellant was in accordance with 2 nd proviso to Rule 9 of the said rules. 6. However, Revenue entertained a view that inasmuch as the appellant has defaulted in payment of duty on account of delayed payments, they are required to discharge their duty liability in terms of Proviso-7 of the said Rule. The said Proviso is to the effect that whenever there is a default of payment of duty, the number of machines available for production have to be considered and if they are higher than the machines actually used for production, then the duty liability would be redetermined accordingly. In terms of the said view of the Revenue, proceedings were ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the 20th day of the following month : Provided also that if there is revision in the rate of duty, the monthly duty payable shall be recalculated pro-rata on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such revision and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: Provided also that in case it is found that a manufacturer has manufactured goods of those retail sale prices, which have not been declared by him in accordance with provisions of these rules or has manufactured goods in contravention of his declaration regarding the plan or details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different retail sale prices and the number of machines intended to be used by him in each of such part or section, the rate of duty applicable to goods of highest retail sale pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of time is not justified. The said plea of the appellants stand accepted by the adjudicating authority, who limited the demand to the number of machines used in the previous month of the manufacture in which duty was paid belatedly. As the number of machines used by the assessee for the previous month or in some case for the subsequent month were higher than the actual number of machines used by them, he adopted the higher number of machines in terms of the said proviso-7 and accordingly confirmed the duty along with interest and imposition of penalty. 9. The legal issue which emerges out of the said factual position is whether it is only the Proviso- 2 to Rule 9 which has to be adopted in case of failure of an assessee to deposit the duty liability well in time or whether the reference to Proviso-7 was justified. It is the contention of the appellant that if we read Rule 9 in its entirety, the same covers the manner of payment of duty and interest. 2 nd Proviso to the said Rule refers to a situation where an assessee is unable to deposit the amount by the 5th of a particular month in which the production has taken place and there is a delay in depositing such amount. The Provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to mean packing machines found available for production. Therefore, the machines which have been sealed by the department would not be considered as the machines available in the factory for production and would not be taken into account for the purpose of payment of duty. It is the contention of the learned advocate that the said clarification given by the Board supports their case. He clarified that when at the start of every month they declared a particular number of machines available for production, the balance number of machines were invariably sealed by the Revenue. As such, the number of machines available in the factory for the purpose of payment of duty has no reference to such sealed machines as is clear from the above clarifications. He also submits that the said legal issue stands considered by the Tribunal in the case of Sanket Food Products Vs CCE [2015 316 ELT 501 (Tri Mum)]. 12. After considering the submissions made by both sides, we find that there is no dispute about the factual position. There is no allegation of any misdeclaration against the assessee as regards the number of machines used for production of goods or the retail sale price of the pouches ..... X X X X Extracts X X X X X X X X Extracts X X X X
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