2016 (12) TMI 1169 - AT - Central Excise

Waiver of pre-deposit - Penalty - Illicit manufacturing - Rule 17 (2) of Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 - Held that - it is an admitted fact that when the premises were raided by the police officers they found in the said premises of the appellant two pouch packing machines which were running with the aid of power on which illicitly Pan Masala/Gutkha were being manufactured. It is further evident from the police report that as mentioned in the SCN that the manufacturer was being done of DilBahar brand Gutkha belonging to one M/s Kanti Chemicals, Kanpur who is the brand owner. Under the facts and circumstances of the present and in view of the poor financial status pleaded before us, we direct the appellant to make a pre-deposit of ₹ 5 lakhs subject to which the balance demand and penalty shall remain stayed till disposal of the appeal. Compliance is to be made on or before 30-11-2016.

Summary

Issues:
1. Allegations of illicit manufacture of Gutkha
2. Admissibility of statements as evidence
3. Requirement of corroborative evidence
4. Ownership of packing machines
5. Pre-deposit requirement for hearing the appeal

Analysis:

1. The case involved allegations of illicit manufacture of Gutkha based on a police raid at the premises of the appellant, where two packaging machines were found. The appellant's statement admitting to the manufacture of Gutkha was recorded by the Revenue Authority. The demand for duty was made under Rule 17(2) of Pan Masala Packing Machines Rules, 2008, for a specific period.

2. The appellant's counsel argued against the admissibility of the statement, highlighting the lack of search by Central Excise Officers, absence of seizure of machines or materials, and the retraction of the statement. The counsel emphasized the need for corroborative evidence to prove clandestine removal and raised concerns about the denial of cross-examination of witnesses. Legal precedents were cited to support the argument that a confessional statement alone cannot be the basis for levying excise duty.

3. The Revenue, represented by the Assistant Commissioner, relied on the impugned order supporting the demand for duty based on the police report and the circumstances of the case. The Tribunal considered the contentions from both sides and acknowledged the presence of the packaging machines at the appellant's premises, where Gutkha was being manufactured illicitly.

4. The Tribunal found it established that the appellant was involved in the manufacturing process of Gutkha using the packaging machines found on the premises. The ownership of the machines was not explicitly proven, but the operation and manufacturing activity were attributed to the appellant. The Tribunal directed a pre-deposit amount, considering the financial status of the appellant, to stay the balance demand and penalty until the appeal's disposal.

5. In conclusion, the Tribunal required the appellant to make a pre-deposit to proceed with the appeal, acknowledging the presence of packaging machines and the manufacturing activity of Gutkha. The decision balanced the need for evidence and the financial circumstances of the appellant, ensuring a fair hearing process.