2017 (12) TMI 551 - AT - Central Excise

Clandestine manufacture and removal - pan masala - It was observed that the appellant was indulged in the surreptitious activity of packing and removing of such notified goods manufactured with the aid of undeclared pouch packing machine - Held that - the machine was used only for two days in manufacturing the notified goods. As per the 8th proviso appended to Rule 9 of the said rules, the duty payable shall be calculated on pro-rata basis of the total number of days remaining in that month, starting from the date of such commencement of production. However, the adjudicating authority by placing reliance on Rule 7 of the rules, has held that the appellant is required to pay the duty for the entire month of February, 2012. The fact is not under dispute that the appellant had contravened the provisions of Chewing Tobacco and Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010 - On perusal of Rule 18 ibid, it reveals that the said rule does not provide for confiscation of raw material, packing material of notified/nonnotified goods and un-declared pouch packing machine. Thus, it is evident that under the said rules, the finished goods are only liable for confiscation. The matter should go back to the original authority for quantification of the redemption fine, payable by the appellant on the finished goods - appeal allowed by way of remand.

Summary

Issues:
1. Central Excise Duty demand calculation based on the usage period of a pouch packing machine.
2. Confiscation of goods and imposition of redemption fine under the Chewing Tobacco and Un-manufactured Tobacco Packing Machine Rules, 2010.

Analysis:

Central Excise Duty Calculation:
The appellant, engaged in manufacturing Chewing Tobacco, was found using an undeclared pouch packing machine, leading to a Central Excise Duty demand of ?14,25,000 and a penalty under Section 11 AC of the Central Excise Act, 1944. The appellant argued that since the machine was used for only two days in February 2012, the duty demand should be limited to those days. The Tribunal, citing Rule 9 of the rules, noted that duty should be calculated on a pro-rata basis for the days the machine was in operation. Relying on a previous case, the Tribunal held that charging duty for the entire month when the machine was used for only two days was not legally sustainable. Thus, the duty liability was adjusted based on the actual usage period of the machine.

Confiscation of Goods and Redemption Fine:
While the appellant admitted to contravening the rules, the Tribunal observed that Rule 18 of the Chewing Tobacco and Un-manufactured Tobacco Packing Machine Rules, 2010, does not authorize the confiscation of raw materials, packing materials, or undeclared pouch packing machines. The rule only allows for the confiscation of finished goods. Therefore, the Tribunal directed the matter back to the original authority for determining the redemption fine applicable to the finished goods, indicating that the imposition of redemption fine on raw materials and packing materials was not justified under the rules.

In conclusion, the Tribunal adjusted the Central Excise Duty demand based on the actual usage period of the pouch packing machine and clarified that under the rules, only finished goods could be confiscated, not raw materials or packing materials. The decision highlights the importance of adhering to legal provisions and ensuring that penalties and confiscations are in line with the applicable regulations.