9911796707
TMI Blog2017 (12) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... duty shall be recalculated pro rata on the basis of number of days in that month during which a machine was in operation due to addition or not in operation due to discontinuation and the said proviso specifically provides that an assessee will not be considered to have discharged the duty liability unless the differential duty is paid by the 5th of the following month if any additional duty is payable due to alteration and further provides that if any excess is paid upon recalculating the same shall be refunded to the manufacturer by the 20th of the following month. The statute has provided specific provision for adjustment of duty - also, the appellant is entitled to rebate/refund of the excess duty paid during the period of closure o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said machine after following the proper production, was uninstalled and sealed on 23.06.2009 and the same was de-sealed on 09.07.2009. The appellant had paid the duty on the said machine for the whole of the month of July, 2009.Thereafter the appellant filed an application for rebate/refund on 07.09.2009 as the said machine had remained continuously out of operation for a period of 15 days or more continuously, particularly for a period of 8 days in the month of July (01st July to 8th July), under the 4th proviso to Rule 9 of PMPM Rules, 2008, which allows payment of duty calculated on pro rata basis on the number of operating machines, in the month, when a factory commences production of a new RSP in that month. The appellant also claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther the proviso under sub-section 2 of section 3A provides that where a factory producing notified goods is in operation during a part of the year only, the annual production thereof shall be calculated on proportionate basis of the annual capacity of production. Further provided that in a case where the factor relevant to the production is altered or modified at any time during the year, the annual production shall be re-determined on a proportionate basis having regard to such alteration or modification. Further proviso to Section 3 of Section 3A provides that where, a factory producing notified goods did not produce the notified goods during the continuous period of 15 days or more, then the duty calculated on a proportionate shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in a month installed in any day during a particular month. Further, provided that in case of non-working of any installed packing machine during the month for any reason whatsoever, the same shall be deemed to be operating packing machine for the month. 8. Further, Rule 9 provides for manner of payment of duty and interest providing that the duty payable on the notified goods shall be paid by 5th day of the same month under intimation in form 2 shall be filed with the Jurisdictional Superintendent of the Central Excise before the 10th day of the same month. Further the 4th proviso to rule 9 provides that in case a manufacturer permanently discontinues manufacturing of goods of existing MRP or commences manufacturing of goods of a new M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall inform to the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, of the date from which he would restart production, whereupon the same is fixed on packing machines would be opened under the physical supervision of Superintendent of Central Excise. 10. The learned Counsel further draws our attention that under notification 42/2008-CE the rate of duty for packing machine is per month subject to the factor i.e. MRP. Thus, the learned Counsel further submits that if the interpretation of Revenue is taken, it would be against the PMPM Rules read with Section 3A of the Act as according to an assessee i.e. in a case an increase in the capacity during the month the assessee will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the following month if any additional duty is payable due to alteration and further provides that if any excess is paid upon recalculating the same shall be refunded to the manufacturer by the 20th of the following month. Thus, we find that the statute has provided specific provision for adjustment of duty. In such circumstances as in the facts of the present case. Accordingly, we allow this appeal and set aside the impugned orders. We further direct that the appellant is entitled to rebate/refund of the excess duty paid during the period of closure of their packing machine during the month of July, 2009 as admittedly the said machine remain uninstalled for a continuous period of more than 15 days as required under the Rules. 13. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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