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TMI Blog2023 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... Clarifications, and has calculated differential duty at para 26 taking into consideration the PPM (CDCD) Rules, 2008 as amended and the Board s clarification given vide letter F.No.341/109/2008-TRU dated 27.7.2009 and Letter No.81/17/2007-CX3 dated 20.04.2010. Board s clarifications are very categorical and clear wherein it is stated that Reading of proviso to Rule 7 to the Rule 9 of PPM (CDCD) Rules, 2008 makes it clear that the default for payment of duty for one month would not be treated as default for all the remaining part of the full financial year. However, the default would continue till the duty for the said month is paid . Hence, in the instant case, the learned Commissioner has rightly demanded the differential duty along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la commonly known as Gutkha falling under Chapter Subheading 2403 9990 of First Schedule to erstwhile Central Excise Tariff Act, 1985, which were subject to duty under Section 3 of the Central Excise Act, 1944 and on the basis of Retail Sale Price (RSP) under Section 4A of the erstwhile Central Excise Act, 1944. 3. Revenue is aggrieved against the impugned order passed by the learned Commissioner wherein he had dropped the proposal for demanding differential duty in terms of 7th Proviso to Rule 9 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (i.e., based on the number of operating packing machine declared in the previous month in respect of which duty was last paid or on the basis of total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority had wrongly interpreted the proviso and demanded differential duty only for the months of default instead of demanding duty for the entire financial Year by considering the highest number of machines operated. 5. Shri B. Venugopal, learned advocate appeared on behalf of the respondents and submits that the learned Commissioner had correctly dealt with the redetermination of differential duty by considering the number of machines declared in the month for which duty was last paid by him or the total number of packing machines found available in his premises at any time thereafter, whichever is higher, which is in accordance with law. 5.1 To buttress his claim, he relied upon the following decisions: a. Collec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 vide Notification dated 8/2010 dated 27.2.2010. Rule 9. Manner of payment of duty and interest. - The monthly duty payable on notified goods shall be paid by the 5th day of same month and an intimation in Form - 2 shall be filed with the Jurisdictional Superintendent of Central Excise before the 10th day of the same month: . .. . Provided also that in case a manufacturer does not pay the duty payable by the due date, and continues to operate any packing machine, then till the time such non-payment continues, he shall be liable to pay the monthly duty based on the number of operating packing mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, the learned Commissioner has rightly demanded the differential duty along with interest for the available packing machines during the period of default. 7.4 We find that in the case of S.M. Perfumes vs. CCE, the Hon ble High Court of Karnataka at Bangalore vide its CEA No.50/2016 CEAs No.59 60/2016 dated 18.1.2017 has considered these Rules and relevant provisos and has rejected the Revenue s plea that the 7th Proviso would operate independently for the whole year. 7.5 Hon ble High Court of Karnataka has upheld the findings of the Tribunal in para 8 of the order, which is reproduced herein below: 8. Whereas, 7th proviso further provides that whether the duty was payable but is not paid and the manufacturer cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch in Collector of Central Excise, Vadodara v. Dhiren Chemical Industries , also reported in 2002 (139) E.L.T. 3(S.C.). The Constitution Bench interpreted the phrase on which the appropriate amount of duty of excise has already been paid in favour of the Revenue. However, it held that, regardless of the interpretation placed by it on that phrase, if there were circulars which had been issued by the Central Board of Excise and Customs which placed a different interpretation upon that phrase, that interpretation would be binding on the Revenue. It is not disputed that there are circulars issued by the Central Board of Excise and Customs which place a different interpretation upon that phrase and which apply to the facts of these two appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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