2015 (1) TMI 75 - AT - Central Excise

Waiver of pre deposit - penalty imposed under Rule 18 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010 read with Section 11AC of CEA, 1944 - Whether actual production of Chewing Tobacco be considered or the deemed production as prescribed for levy of duty under Section 3A of CEA, 1944 read with Chewing Tobacco Rules, 2010 and relevant Notification 16/2010-C.E., dated 27-2-2010, be considered - Held that - without analyzing the relevant rules, prima facie, ongoing through the circular dated 24-1-2014 issued by the Board, we are of the opinion that for determination of capacity of production and the duty liability, the procedure laid down under the said Chewing Tobacco Rules, 2010 would be relevant. In other words it is the deemed production rather than the actual production of the goods be relevant for calculation of duty. Thus, the applicant could able to make out a prima facie case for waiver of dues adjudged against them. Consequently, all dues adjudged is waived and its recovery stayed during the pendency of the appeal - Stay granted.

Summary

Issues:
1. Application for waiver of pre-deposit of duty and penalty under Chewing Tobacco and Unmanufactured Tobacco Packing Machine Rules, 2010.

Analysis:
The application sought waiver of duty of Rs. 4.59 crores and an equal penalty imposed under Rule 18 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machine Rules, 2010, along with Section 11AC of the Central Excise Act, 1944. The appellant contended that the duty was determined based on the declared production capacity, as per the rules and a specific notification. The dispute arose when the Department alleged excess production beyond the determined capacity, requiring additional duty payment. The appellant argued that no discrepancies in retail prices or machine declarations were raised by the Department. Reference was made to a circular stating that actual production should not solely determine duty liability under the Chewing Tobacco Rules, 2010.

The Revenue's representative supported the Commissioner's findings and highlighted the timing of a relevant circular issued after the impugned order. Upon reviewing the submissions and records, the Tribunal identified the central issue of whether actual or deemed production should dictate duty calculation under the Chewing Tobacco Rules, 2010 and relevant notifications. Without delving into the circular's specifics, the Tribunal opined that the rules' prescribed procedure for deemed production should guide duty determination. Consequently, a prima facie case was established for waiving the adjudged dues, and recovery was stayed pending appeal. The Tribunal emphasized that deemed production, rather than actual production, should be the basis for duty calculation, supporting the appellant's position for waiver of dues.

This judgment underscores the significance of adhering to the prescribed rules and notifications in determining duty liability, emphasizing deemed production as the relevant factor. The Tribunal's decision to waive the dues and stay recovery during the appeal process reflects a balanced approach in addressing the dispute over duty payment obligations under the Chewing Tobacco Rules, 2010.