2018 (4) TMI 1641 - AT - Central Excise

Validity of SCN issued subsequent to payment of differential duty - benefit of reduced penalty u/s 11AC of the Act - contravention of provisions of Rules 6, 7, 8, 9 and 13 of Pan Masala Packing Machines (Capacity Determination and Collection of duty) Rules, 2008 - suppression of facts - Held that - The provisions of PMPM Rules provide for levy of differential duty as well as penalty where any manufacture is found to be manufacturing in violation of his declaration - Admittedly, in the facts of the present case, there was difference and violation found by the visiting officers, as noticed herein above. In this view of the matter, I hold that the levy of duty and penalty to be proper - However, under the facts and circumstances the appellant have deposited 25% penalty within 30 days of communication of the Order-in-Original and/or the date of recording of the Order-in-Original, they are entitled to the benefit under Section 11 AC proviso (ii) which provides that the benefit of reduced penalty under the 1st proviso shall be available, if the amount of penalty so determined has also been paid within the period of 30 days, referred to in the 1st proviso. Penalty on Shri Alim Ali - Held that - He had given a classifiable explanation at the time of panchnama, which was not found to be wrong. Further, the differential duty was deposited forthwith, within a period of three days. In this view of the matter, the personal penalty on Shri Alim Ali is set aside. Whether the said five packing machines will be treated as additional machines for packing of Gutkha, for the month of November, 2008 and as such the respondent-assessee will be required to pay in addition to the duty already paid for packing of Pan Masala duty, as applicable for Gutkha for the five machines? - Held that - Under similar facts and circumstances the Division Bench of this Tribunal in the case of A.M.P. Products Ltd. Vs Commissioner of Central Excise 2017 (7) TMI 1119 - CESTAT ALLAHABAD have held that in a case where an assessee manufactured on the same machine, goods of more than one RSP during the month the assessee will be liable to pay duty at the maximum rate or as per the highest RSP. If an assessee manufactured goods of three different RSP on one machine during the month, it will not amount to charging of duty, as per three machines. Appeal dismissed - decided against Revenue.

Summary

Issues:
1. Validity of show cause notice issued after payment of differential duty
2. Entitlement to 25% benefit of penalty under Section 11AC of the Act

Issue 1: Validity of Show Cause Notice:
The appeal questioned the validity of a show cause notice issued after the appellant paid the differential duty. The appellant contended that no show cause notice was necessary as they admitted the mistake and promptly paid the duty within three days. The Preventive Team found irregularities during an inspection, leading to a show cause notice alleging deliberate evasion of Central Excise duty. The appellant argued that no deliberate evasion occurred as they had paid the duty upfront. The appellant also raised concerns about the absence of independent witnesses during the inspection, lack of evidence of deliberate evasion, and the absence of recorded statements from the laborers operating the machines.

Issue 2: Entitlement to 25% Benefit of Penalty under Section 11AC:
The Tribunal analyzed whether the appellant was entitled to the benefit of reduced penalty under Section 11AC of the Act. The appellant had deposited 25% penalty within 30 days of the communication of the Order-in-Original. The Tribunal held that the appellant complied with the requirements of Section 11AC, entitling them to the benefit of reduced penalty. The Tribunal also considered the penalty imposed on Shri Alim Ali, the Authorized Signatory, and found that his explanation during the inspection was plausible. Consequently, the personal penalty on Shri Alim Ali was set aside. The Tribunal upheld the confiscation of Pukar Brand Gutkha but reduced the redemption fine. However, the confiscation of the five Packing Machines was set aside. The Tribunal allowed the appeal filed by M/s Durga Trading Company in part and the appeal filed by Shri Alim Ali.

Additional Issue:
In a separate appeal filed by the revenue, the issue was whether the five packing machines should be treated as additional machines for packing Gutkha, leading to a demand for additional duty. The revenue issued a show cause notice demanding differential duty, which was contested by the respondent. The Tribunal referred to legal precedents and held that if an assessee manufactured goods of different Retail Sale Prices on the same machine during a month, they would be liable to pay duty at the maximum rate. The Tribunal dismissed the revenue's appeal, upholding the impugned order and granting consequential benefits to the respondent in accordance with the law.

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