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TMI Blog2018 (12) TMI 1359X X X X Extracts X X X X X X X X Extracts X X X X ..... ing their duty liability in respect of Gutkha pouches and Panmasala pouches of different RSP manufactured by them under Panmasala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 (hereinafter referred to as "PMPM Rules"). The appellant, for each month were filing declaration in Form - I under Rule 6 of the PMPM Rules wherein they were declaring the total number of packing machines and also their plan for manufacture of Gutkha and panmasala of different RSPs on those machines. As per the declarations in form -I filed by them for the months of August, 2009, September, 2009, October, 2009 and November, 2009, the appellant were to use one packing machine for manufacture of panmasala pouches of the RSP of Rs. 2 per pou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed. 2. Heard both the sides. 3. Shri Rupesh Kumar, Advocate, the ld. Counsel for the appellant, pleaded that in this case, for the months of August, September, October and November, 2009, in respect of one machine which was being used for manufacture of panmasala retail pouches, the appellant in the Form-I declarations filed by them, had declared that this machine would be used for manufacture of panmalasa pouches of RSP of Rs. 2 as well as Rs. 3, that this is not the case where a manufacturer, in the middle of the month, had started manufacture of the pouches of an RSP which was not earlier being manufactured by them, that the first proviso to Rule 8 of PMPM Rules becomes applicable only when a manufacturer commences the manufacture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules would become applicable when an existing machine is used in a particular month for manufacture of the Gutkha or panmasala in retail pouches of more than one RSP. 5. We have considered the submissions from both the sides and perused the records. The undisputed facts are that during each of the four months - August 2009, September, 2009, October, 2009 and November, 2009, the appellant in Form -I declaration for that month filed by them in terms of Rule 6 of the PMPM Rules, had clearly declared that they would be using one packing machine for manufacture of the retail pouches of panmasala and that machine would be used for manufacture of the retail pouches of Rs. 2 as well as Rs. 3 RSP. We find that such a declaration has been made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operating packing machine for the month." 6.1 From perusal of this Rule, it is clear that first proviso to Rule 8 becomes applicable when on an existing packing machine, the manufacturer commences manufacture of the "goods of a new RSP" during that month and in such a situation, this has to be treated as an addition in the number of operating packing machines for the month or in other words, that machine would have to be treated as two machines. The dispute is as to what is a "new retail sale price". The new retail sale price would mean the retail sale price which had not been declared in respect of that machine in the Form-I declaration. For example, when in terms of the Form-I declaration, a manufacturer is to manufacture the Gutkha/pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths June 2009, July 2009, August, 2009, October and November 2009. The bench, after observing the provisions of Rule 8 and of Rule 10 and also the retrospective amendment, held as under:- "10. It is also seen that by Section 101 of the Finance Act, 2014, the First Proviso to Rule 8 of the PMPM Rules has been replaced w.e.f. 13th April, 2010 by the following:- "Provided that where a manufacturer uses an operating machine to produce pouches of different retail sale price during a month, he shall be liable to pay the duty applicable to the pouches of the highest the retail sale price for the whole month." 10.1 Thus, in terms of this retrospective amendment effective from 13th April, 2010 made by Section 101 of the Finance Act, 2014, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso to Rule 8 of the PMPM Rules cannot be interpreted so as to result in levy of duty on the quantity which is more than the deemed production per machine per month as specified in Rule 5. When for the purpose of Rule 5, in case of a packing machine manufacturing Gutkha pouches of RSP of Re.1, the RSP of Re.0.50 piece is not a new RSP, for the purpose of First Proviso to Rule 8, it cannot be treated as new RSP." 7. The above reproduced ratio squarely covers the issue in favour of the appellant. We also note that the Revenue was aggrieved of the order passed by the Tribunal (supra), carried the matter in appeal before the Hon'ble High Court of Allahabad. The Hon'ble High Court, after considering the provisions for the period in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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