2012 (5) TMI 101 - HC - Central Excise

Demand of excise duty - compounded levy / production based duty - Pan Masala Packing Machines - stay application Held that - tribunal after referring to the rules 2008 has taken a view that even if a machine was not working for certain period of the month, the same shall be deemed to be operating packing machine for the entire month. On that basis coming to the said conclusion the tribunal has observed that it was not a fit case of total waiver. - The consequences of sealing of non operating machines by the department itself on a notice given by the appellant have to be looked into for determining the issue. The scope and applicability of second proviso of Sub-Section 2 of Section 3-A of the Act has also to be considered by the Tribunal to which the tribunal has not adverted. - Direction to Pre-deposit reduced from 3 crores to 2 crores.

Summary

Issues:
Challenging Tribunal's order on excise duty demand, interpretation of Rule 10 for abatement, applicability of second proviso of Section 3-A, undue hardship in pre-deposit requirement.

Analysis:
The judgment by the High Court of Allahabad involved two appeals challenging the Tribunal's order on excise duty demand. The Commissioner Central Excise had issued show cause notices confirming significant demands, leading to the filing of appeals by the appellant with stay applications. The Tribunal directed pre-deposit of substantial amounts in addition to what was already deposited by the appellant. The main contention revolved around the interpretation of Rule 10 concerning abatement for non-production of goods due to inoperative machines. The appellant argued that the abatement should apply for the period where production was halted, emphasizing the sealing of inoperative machines as per the Commissioner's order.

The appellant highlighted the abatement provision under Rule 10 and argued for a favorable interpretation based on the non-production period due to inoperative machines. The respondent, on the other hand, contended that abatement should not apply when production continued partially. The Tribunal's order was based on a strict interpretation of the rules, deeming inoperative machines as operating for the entire month, leading to the requirement of pre-deposit. The High Court considered the submissions and records, acknowledging a prima facie case for consideration before the Tribunal, especially regarding the sealing of non-operating machines and the applicability of the second proviso of Section 3-A.

The High Court referred to past judgments emphasizing undue hardship in cases of pre-deposit requirements, ensuring justice is served without expressing any opinion on merits affecting the appeal's decision. Consequently, the Court modified the Tribunal's order, reducing the pre-deposit amount and allowing adjustments based on previous deposits made by the appellant. The appellant was granted three weeks to comply with the modified pre-deposit requirement. The judgment provided a detailed analysis of the legal provisions, interpretations of rules, and considerations of undue hardship, ultimately disposing of both appeals accordingly.