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TMI Blog2018 (4) TMI 1641X X X X Extracts X X X X X X X X Extracts X X X X ..... above. In this view of the matter, I hold that the levy of duty and penalty to be proper - However, under the facts and circumstances the appellant have deposited 25% penalty within 30 days of communication of the Order-in-Original and/or the date of recording of the Order-in-Original, they are entitled to the benefit under Section 11 AC proviso (ii) which provides that the benefit of reduced penalty under the 1st proviso shall be available, if the amount of penalty so determined has also been paid within the period of 30 days, referred to in the 1st proviso. Penalty on Shri Alim Ali - Held that:- He had given a classifiable explanation at the time of panchnama, which was not found to be wrong. Further, the differential duty was deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further deposit of 25% penalty within 30 days of the passing and communication of the Order-in-Original (i) whether the show cause notice issued subsequent to payment of differential duty is valid and (ii) whether the appellant is entitled to 25% benefit of penalty under Section 11AC of the Act. 2. The brief facts of the case are that the appellant is engaged in manufacture of Pan Masala and Gutkha, by using Pouch Packaging Machines. As per declaration filed for the month of November, 2008, they have total 30 machines installed and operating in their factory, out of which 24 machines were used for packing Gutkha of MRP ₹ 1/- and 06 machines were used to packing pan masala of MRP ₹ 1/-. The Preventive Team inspected their f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al duty amounting to ₹ 16,25,000/- be not demanded and recovered with proposal to appropriate from the amount already deposited. Further, there was proposal to impose penalty under Rule 26 of CER, 2002 on Shri Alim Ali, Authorized Signatory. 3. The SCN was adjudicated on contest and the plea of unintentional error by the labourers were rejected and accordingly, the proposed demands were confirmed along with appropriation, further 45 bags of Pukar Brand Gutkha was ordered to be confiscated with option to redeem on payment of redemption fine ₹ 70,000/- and further the 5 Pouch Packing Machines were also ordered to be confiscated with option to redeem on payment of redemption fine of ₹ 40,000/- and further equal amount of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order. 7.1 Having considered the rival contentions and on perusal of the records and the panchnama, I find that the provisions of PMPM Rules provide for levy of differential duty as well as penalty where any manufacture is found to be manufacturing in violation of his declaration. Admittedly, in the facts of the present case, there was difference and violation found by the visiting officers, as noticed herein above. In this view of the matter, I hold that the levy of duty and penalty to be proper. However, under the facts and circumstances the appellant have deposited 25% penalty within 30 days of communication of the Order-in-Original and/or the date of recording of the Order-in-Original. Further, I hold that they are entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chines @ ₹ 12,50,000x5 or ₹ 62,50,000/- and accordingly, the differential duty (Rs.62,50,000-Rs.16,25,000/-) or ₹ 46,25,000/- can be demanded from the respondents under the provisions of Section 11 A (1) of the Act read with 11 AB of the Act. 9. The brief facts of the case are already noticed, as above. The first show cause notice was issued on 27th May, 2009. Subsequently, revenue issued the 2nd show cause notice on 07/12/2009 on the same facts and circumstances, demanding the differential duty of ₹ 46,25,000/- of Central Excise duty. This SCN was adjudicated vide Order-in-Original dated 16th August, 2010 by the Additional Commissioner along with equal amount of penalty under Rule 17 (1) of PMPM Rules read with S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Nijam Sugar Company. Further, under similar facts and circumstances the Division Bench of this Tribunal in the case of A.M.P. Products Ltd. Vs Commissioner of Central Excise in Appeal No. E/3956/2010 EX[DB] vide Final Order passed on 11/07/2017 have held that in a case where an assessee manufactured on the same machine, goods of more than one RSP during the month the assessee will be liable to pay duty at the maximum rate or as per the highest RSP. If an assessee manufactured goods of three different RSP on one machine during the month, it will not amount to charging of duty, as per three machines. 12. Accordingly, this appeal filed by revenue is dismissed and the impugned order is upheld. The respondent assessee shall be entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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