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TMI Blog2018 (3) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... nthly duty payable on notified goods shall be paid by the 5th day of the same month and an intimation in Form – II shall be filed with the Jurisdictional Authority by 10th of the same month. Division Bench of this Tribunal in Trimurti Fragrances Pvt. Ltd. [2015 (8) TMI 34 - CESTAT NEW DELHI] in the case of claim for abatement for the period of closure of the factory when the appellant paid the proportionate duty for the period factory was in operation and Department contended that appellant should have paid entire duty for the month and only thereafter should have claimed rebate, where the Tribunal has held that when a new RSP is introduced the fourth proviso to Rule 9 of the said rules would apply and that any other interpretation would make the said proviso redundant or otiose, which is not permissible by law. The view taken by Revenue is against the provisions of the PMPM Rules, 2008 readwith Section 3A of the Act - appeal allowed - decided in favor of appellant. - Excise Appeal No. 2608 of 2012 (SM) - Final Order No. 50815/2018 - Dated:- 27-2-2018 - Hon ble Shri Anil Choudhary, Member ( Judicial ) Shri A.K. Prasad and Ms. Priyanka Goel, Advocates for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that they were required to pay duty of ₹ 85,16,130/- only, on pro-rata basis for the period 10/07/2009 to 31/07/2009, as per the fourth proviso to Rule 9 of the said Rules. 6. The Adjudicating Authority has held that since the MRP of ₹ 2/-, a new retail sale price, had commenced on existing machines (which had been sealed in June 2009), the first proviso to Rule 8 of the said Rule would apply and it would be deemed that the 5 machines producing ₹ 2/- MRP retail pouches, were operating for the whole month. The Adjudicating Authority also held that the fourth proviso to Rule 9 would not be applicable, as contended by the appellants, since it would apply only when a new retail sale price was introduced for the first time ever (since having started working under the compounded levy scheme). 7. The Commissioner (Appeals) has also upheld the order of the Adjudicating Authority on the same grounds and hence the present appeal. 8. The learned Counsel for the appellant submits that as per Rule 6 (4) of the said Rules, even if a packing machine is installed in the middle of a month it will be deemed that the said machine was operating during the whole month. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31/07/2009, as per the fourth proviso to Rule 9 of the said Rules. 14. The learned AR for the Revenue Shri V. Sengraj relies on the findings in the impugned order. 15. Having considered rival contentions, I find that under the PMPM Rules, the period of assessment is calendar month. It is evident from Rule 5 which provides for determination of capacity on monthly basis and the duty payable per machine is prescribed for each month. Further in several other rules, the reference to determination of duty, abatement of duty is with respect to month. On a conjoint reading of the rules as a whole particularly Rule 9 proviso 4, Rule 8 first proviso, Rule 6 (4), Rule 7, it is evident that the applicable rule in the facts of the present case is Rule 9 which provides for the monthly duty payable on notified goods shall be paid by the 5th day of the same month and an intimation in Form II shall be filed with the Jurisdictional Authority by 10th of the same month. Further, 4th proviso to Rule 9 provides that in case a manufacturer commences manufacturing of goods of a new retail sale price during the month, the monthly duty shall be recalculated pro-rata on the basis of total number o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty by applying the appropriate rate of duty as specified in the Notification No. 42/2008-C.E. to the number of operating packing machines in the factory during the month, and Rule 8 specifies as to how number of operating packing machines is to be determined, and according to this Rule, the number of operating packing machine in a factory for a particular month shall be the maximum number of operating packing machine installed on any day during the month. The Fourth Proviso to Rule 9 is about recalculation of duty in the circumstances when during a month the manufacturer either permanently discontinues the manufacture of the goods of an existing RSP or commences the manufacture of goods of a new RSP. Thus the Fourth Proviso to Rule 9 is in respect of calculation of duty payable for a month and has to be treated as qualifying the provisions of Rule 7 read with Rule 8. Hon ble Bombay High Court in the case of Shree Satpuda Tapi Parisar Sahkari Sakhar Karkhana Ltd. v. Union of India reported in 2014 (307) E.L.T. 699 (Bom.) in para 13 of its judgment regarding the construction of the proviso has held as under :- the general rule in construing a provision containing a provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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