2013 (11) TMI 1201 - AT - Central Excise

Applicability of Rule 9 of Pan Masala Packing Machines Rules - Differential Duty Waiver of Pre-deposit Held that - we are unable to go into the merits of the arguments made by both sides as regards applicability of Rule 9 and proviso thereof of PMPM Rules to the case, for the reason that constitutional validity of these rules is under challenge before Hon ble Apex Court - the extended period for demanding duty under Rule 9 of PMPM Rules, prima facie, does not arise - At the same time, the show cause notice which is issued in August 2012, also covers the period which is within limitation - since the demand within the limitation period needs to be considered from various angles and more specifically regarding the merit, it would be appropriate to put some conditions for hearing and disposing the appeals on merits Appellant was directed to submit an amount of Rupees One Crore as Pre-deposit Upon such submission rest of the duty to be stayed till the disposal Partial stay granted.

Issues:
1. Applicability of Rule 9 and proviso of Pan Masala Packing Machines Rules.
2. Constitutional validity of the rules challenged before the Supreme Court.
3. Invocation of extended period for demanding duty.
4. Financial hardship of the appellant.
5. Conditions for hearing and disposing of the appeals.

Analysis:

1. Applicability of Rule 9 and proviso of Pan Masala Packing Machines Rules:
The appellant had been assessed under the Pan Masala Packing Machines Rules and was discharging Central Excise duty accordingly. The issue revolved around the appellant's compliance with the rules and the duty payments. The appellant argued that they had been filing declarations regarding machine operations with the authorities, which were always done under Panchnama. The Additional Commissioner emphasized that the rules were clear, and any default in payment before the due date rendered the appellant liable to pay the duty for the machines in their factory.

2. Constitutional validity of the rules challenged before the Supreme Court:
The constitutional validity of the Pan Masala Packing Machines Rules was under challenge before the Supreme Court. The Tribunal refrained from delving into the merits of the arguments regarding the rules' applicability, awaiting the Supreme Court's judgment. This challenge impacted the decision-making process regarding the case.

3. Invocation of extended period for demanding duty:
The appellant contended that the demand for duty in the show cause notice issued in 2012 was hit by limitation, as they had been filing declarations and cooperating with departmental officers. The Tribunal acknowledged the appellant's case for non-invocation of the extended period, considering their compliance with notifying authorities about machine operations and belated duty payments.

4. Financial hardship of the appellant:
The appellant presented evidence of severe financial hardship, including a balance sheet showing losses. The Tribunal recognized the financial challenges faced by the appellant, which influenced the decision-making process in determining the pre-deposit amount and stay of recovery.

5. Conditions for hearing and disposing of the appeals:
Given the complexity of the case and the pending constitutional challenge, the Tribunal imposed conditions for hearing and disposing of the appeals on merits. The appellant was directed to make a pre-deposit of Rs.1 Crore within a specified timeframe. Compliance with this condition would allow the waiver of pre-deposit for the remaining amounts involved, with recovery stayed until the appeals' disposal.

This detailed analysis highlights the key issues addressed in the judgment, providing a comprehensive overview of the legal arguments and considerations made by the Tribunal in reaching its decision.

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