Rohit Ranjan Agarwal, J. - (1.) These two appeals filed under Section 35-G of the Central Excise Act, 1944 arise against the order of the Customs, Excise and Service Tax Appellate Tribunal, Allahabad (hereinafter called as "CESTAT"), dated 7.6.2016. As the issue in both the appeals are same, hence they are heard and decided together.
(2.) Appeal No.16 of 2017 was admitted on 23.5.2019 on the following questions of law: "(i) Whether the Hon'ble CESTAT has erred in not taking the cognizance of the provision of Rule 7 and Rule 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008 which provides that: Rule 7. Duty payable to be calculated. - The duty payable for a particular month shall be calculated by application of the appropriate rate of duty specified in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No.42/ 2008-CE, dated the 1st July, 2008 to the number of operating packing machines in the factory during the month. 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 that monthly duty payable for the month of July, 2008 shall be paid on or before 15th day of July, 2008: Provided further that if the manufacturer fails to pay the amount of duty by due date, he shall be liable to pay the outstanding amount along with the interest at the rate specified by the Central Government vide notification under section 11AB of the Act on the outstanding amount, for the period starting with the first day after due date till the date of actual payment of the outstanding amount: Provided also that in case of increase in the number of operating packing machines in the factory during the month on account of addition or installation of packing machines, the differential duty amount, if any, shall be paid by the 5th day of the following month: Provided also that in case a manufacturer permanently discontinues manufacturing of goods of existing retail sale price or commences manufacturing of goods of a new retail sale price during the month, the monthly duty payable shall be recalculated pro-rata on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such discontinuation or commencement and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: Provided also that if there is revision in the rate of duty, the monthly duty payable shall be recalculated pro-rata on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such revision and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month and in case the amount of duty so recalculated is less than the duty paid for the month, the balance shall be refunded to the manufacturer by the 20th day of the following month: Provided also that in case it is found that a manufacturer has manufactured goods of those retail sale prices, which have not been declared by him in accordance with provisions of these rules or has manufactured goods in contravention of his declaration regarding the plan or details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different retail sale prices and the number of machines intended to be used by him in each of such part or section, the rate of duty applicable to goods of highest retail sale price so manufactured by him shall be payable in respect of all the packing machines operated by him for the period during which such manufacturing took place: 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 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: Provided also that in case a new manufacturer commences production of notified goods in a particular month, his monthly duty payable for that month shall be calculated pro-rata on the basis of the total number of days in the month and the number of days remaining in that month starting from the date of commencement of the production of such notified goods and shall be paid within five days of such commencement. (ii) Whether the Hon'ble CESTAT has erred in not taking cognizance that neither the party is a new manufacturer nor they have changed their Retail Sale Price (RSP) of 05 machines, which were used for the manufacture of Gutkha of MRP of Rs.2.00 during the month of November, 2012. During the month of November, 2012, the parety operated the following machines for 12 days (i.e. 19.11.2012 to 30.11.2012) †? 06 Pouch Packing Machines of Gutkha of MRP Rs.1.00; and †? 05 Pouch Packing Machines of Gutkha of MRP Rs. 2.00. As per Notification No. 42/ 2008-CE, dated the 1st July 2008 read with Rule 7 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, during the month of November-2012, the rate of duty per machine per month for Pouch of MRP. 1.00 was Rs. 19 lakhs and for Pouch of MRP Rs. 2.00 was Rs. 36 lacs. It is stipulated under proviso 4 of Rule 9 of the Pan Masala Rules, 2008 that if a manufacturer commences manufacturing of goods of a new retail sale price during the month, the monthly duty payable shall be recalculated pro-rata on the basis of the total number of days in that month and the number of days remaining in that month counting from the date of such commencement and the duty liability for the month shall not be discharged unless the differential duty is paid by the 5th day of the following month. Therefore, in view of the above proviso 4 of Rule 9 of the Pan Masala Rules, 2008, applicable for computation of their duty liability for the month of November, 2012 as under:- †? the party was required to pay the Central Excise duty on pro-rata basis for total 12 days (from 19.11.2012 to 30.11.2012) on 06 pouch packing machines of MRP Rs. 1.00 that remained operative during the said period, which comes to Rs.45,60,000/- @ 19.00 lakhs per machine per month and this duty was to be paid by the 5th day of the following month [i.e. 5th December, 2012], as the pouches of MRP Rs. 1.00 was new retail price for the said party. †? the party was required to pay full duty on 05 machines used for the manufacture of Gutkha of MRP Rs. 2.00, which works out to Rs. 1,80,00,000/- @ Rs.36.00 lakhs per machine per month and this duty was to be paid by 5th of the same month, as the pouches of MRP Rs. 2.00 was not a new retail price for the party. †? thus, the total duty liability of the party for the month of November, 2012 works out to Rs. 2,25,60,000/- [Rs. 45,60,000/- of Gutkha MRP Rs. 1.00 on 06 machines + Rs. 1,80,00,000/- of Gutkha MRP Rs. 2.00 on 05 machines] as per the provisions of Pan Masala Rules, 2008 but the party paid Rs. 1,17,60,000/- only for the month of November, 2012 which resulted into short payment of Rs. 1,08,00,000/- for the month of November- 2012. (iii) When the Apex Court in the case of M/s Madhumilan Syntax Ltd vs Union of India, 2007 210 ELT 484 (SC), the Apex Court held that once a statute requires to pay tax and stipulates period within which such payment is to be made, the payment must be made within that period. (iv) When the Apex Court in the case of State of Jharkhand & Others vs. Ambey Cement & Anr., 2004 178 ELT 55 (SC)], has held that it is a cardinal rule of the interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. (v) When the judgment of the Hon'ble High Court, Delhi relied on by the CESTAT in the instant case in the case of CCE vs. Shakti Fragrances Pvt. Ltd.,2015 324 ELT 390 does not appear to be identical to the instant case. (vi) Whether, in view of the provisions of Rule 7 & 9 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rule, 2008 and aforementioned rulings by Apex Court, the confirmation of demand & recovery of the short paid duty amounting to Rs.1,08,00,000/- for the month of November, 2012 alongwith interest and penalties should have been upheld by the Hon'ble CESTAT?
(3.) On 19.9.2019, learned counsel for the appellant was permitted to add the following substantial question of law, which reads as under: "1). Whether in view of the provisions of Rule 9 and Rule 10 of the Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules 2008, the manufacture is required to pay the duty for the whole month and thereafter seek rebate for non working days or the manufacture can suo moto take the benefit of abatement by not depositing the duty for non working days ?";