2011 (11) TMI 322 - AT - Central Excise

Manufacturer of gutka Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 introduced vide Notification No. 30/2008-CE (NT) dated 1.7.2008 letter dated 01.07.08 stating stoppage of production, received in the Range Office on 9.7.2008 factory visited on 11.7.08 for sealing the machines - appellants refused for sealing - machine was sealed on 15.7.2008 - duty imposed for the period 01.07.08 to 14.07.08 plea for waiver of pre-deposit of duty - Held that - The issue is not free from doubt and no final view can be taken at this interim stage. Therefore, asseessee is required to deposit Rs 4 lakhs towards duty within stipulated period from the date of receipt of the present stay order. Subject to deposit of the above amount, the pre-deposit of balance amount of duty and entire amount of penalty shall stand waived and its recovery stayed during the pendency of the appeal.

Issues: Application to dispense with pre-deposit of duty and penalty; Interpretation of Pan Masala Packing Machines Rules 2008; Allegations of non-compliance with duty payment requirements; Consideration of financial difficulties for waiver of pre-deposit.

Analysis:
1. The case involved an application seeking dispensation of the pre-deposit of duty and penalty amounting to Rs.5,83,333/- confirmed against the appellant. The appellant, engaged in gutka manufacturing, was required to provide details of packing machines and retail prices as per the Pan Masala Packing Machines Rules 2008 introduced on 1.7.2008. The appellant claimed to have ceased production from 1.7.2008 and shifted operations to a new premises. However, the Revenue alleged non-compliance for the period 1.7.2008 to 14.7.2008, initiating proceedings resulting in the impugned order upheld by the Commissioner (Appeals).

2. The lower authorities rejected the appellant's contention of non-production during the disputed period, citing delayed intimation and refusal to seal machines as evidence against the appellant's claims. The Commissioner (Appeals) relied on the Central Excise Inspector's report, emphasizing the appellant's failure to contest the report or seek cross-examination. The appellant's belated intimation of production stoppage, coupled with resistance to sealing machines, led to the rejection of their claims by the authorities.

3. The appellate tribunal found the issue not conclusively resolved, acknowledging doubts regarding the appellant's case. The tribunal noted the lack of a bona fide argument in favor of the appellant, especially considering the delayed intimation and obstruction in sealing machines. Acknowledging the potential for machine use during the disputed period, the tribunal upheld the requirement of a deposit while allowing a partial waiver subject to the deposit of Rs.4 lakhs towards duty within 8 weeks. The waiver extended to the balance duty amount and the entire penalty during the appeal's pendency.

4. The tribunal's decision highlighted the absence of financial hardship pleaded by the appellants as a factor in determining the deposit requirement. The order directed compliance within a specified timeline and scheduled a follow-up for verification of the deposit. The judgment, pronounced on 4.11.11, emphasized the need for the appellant to meet the deposit conditions to avail of the waiver and stay on penalty recovery during the appeal process, ensuring adherence to the legal and procedural requirements.

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