2023 (9) TMI 1372 - AT - Central Excise

Clandestine Removal - Applicability of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - failure to file declaration under rule 6 of Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 - suppression of installed machinery - scope for any mitigating circumstances to be considered for levy under any other provision of law or to be left out of assessment or not - presumption of having commenced production on the appointed date - Recovery alongwith interest and penalties - HELD THAT - The claim of the appellant that licence for manufacture of gutkha had not been obtained appears to have been overlooked even though it should have been possible to have this aspect verified. Sadly, that did not happen. It was improper on the part of the adjudicating authority to assume to the contrary and to presume that either the administration of the state government was lax or that the appellant had operated outside the law with not a whiff of illegal activity coming to the public eye. No inquiry was taken up to ascertain destination of impugned product , if any, had been manufactured from deployment of machine intended for manufacture of licenced product. There is no evidence of clandestine production. There is no evidence to suggest that appellant had used available machines to manufacture gutkha during the disputed period. The impugned order is silent about the state of affairs that prevailed prior to the Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 coming to force or any valid reason to suspect that appellant was manufacturing the product. The presumption owing to which the Rules were said to be applicable is not acceptable and the collection of tax on such assumptions is unthinkable. The appeal is allowed.

Issues involved:
The applicability of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008, recovery of duty under Central Excise Act, 1944, penalties under relevant rules, and the surrender of registration certificate.

Issue 1: Applicability of Rules and Recovery of Duty:
The appeal addressed the applicability of Pan Masala Packing Machines Rules, 2008, for the recovery of a substantial amount under the Central Excise Act, 1944. The appellant, M/s Krystal Chemical Industries, contested the imposition of penalties under various rules in relation to the recovery. The impugned order by the Commissioner of Central Excise, Nagpur, was challenged based on these grounds.

Details:
The impugned order raised concerns about the surrender of the registration certificate and the payment of levy under the Central Excise Act. The appellant had a registration under Central Excise Rules since 2004 but lacked a license from the Government of Maharashtra for production. The order highlighted the issue of 'tax obsession' versus 'societal obligation' in Maharashtra regarding the production of certain goods. The appellant's failure to comply with rules and subsequent recovery notice in 2009 formed the basis of the dispute.

Issue 2: Compliance and Production Allegations:
The case involved allegations of non-compliance with rules and the presumption of production without concrete evidence. The appellant had a history of manufacturing exempted goods but faced challenges due to licensing issues for a new product. The notice of recovery focused on the period from July 2008 to November 2008, citing non-compliance with declaration rules and machinery suppression.

Details:
The appellant's defense argued against the presumption of using unapproved machinery and lack of evidence supporting production claims. The absence of statutory approvals, non-availability of essential equipment, and the lack of raw material procurement evidence were key points in the appellant's defense. The adjudicating authority confirmed the demand based on identified deficiencies, including the machine allegedly intended for production of a different product.

Issue 3: Legal Compliance and Presumptions:
The main issue revolved around the presumption of production and the lack of mitigating circumstances considered in the levy process. The appellant's compliance with notification procedures and the alleged violation of rules were central to the proceedings. The order emphasized the importance of following the prescribed procedures under the relevant notifications.

Details:
The order highlighted discrepancies in the appellant's compliance with notification procedures and the compounded levy scheme. The failure to file necessary declarations and the absence of abatement claims during the specified period led to the conclusion that the appellant had violated the rules. The lack of concrete evidence of production raised doubts about the validity of the duty recovery based solely on the rules without substantial proof.

Separate Judgment:
The appeal was allowed, and the impugned order was set aside based on the lack of concrete evidence supporting the duty recovery claims and the presumption of production without proper verification or consideration of the appellant's compliance challenges.

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