2012 (11) TMI 993 - AT - Central Excise

Waiver of pre-deposit - applicant manufactured and cleared Pan Masala Gutka and had not paid duty as per the provisions of Pan Masala Packing Machines Rules, 2008 Held that - As per rule 6, the manufacturer has to file a declaration stating therein the number of packing machines - when the applicants filed the declaration stating therein that there is no packing machine for manufacture of Pan Masala Gutka and in absence of any verification to that extent - applicants have made out a strong case in their favour - pre-deposit of duty, interest and penalty waived

Summary

Issues:
Waiver of pre-deposit of duty, interest, and penalties based on the demand confirmed on the manufacturing and clearance of Pan Masala Gutka without paying duty as per the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008.

Analysis:
The applicant sought a waiver of pre-deposit of duty amounting to Rs.13,67,65,000/- along with interest and penalties. The demand was upheld against M/s Krystal Chem. Industries for manufacturing and clearing Pan Masala Gutka without paying duty as per the provisions of the Pan Masala Packing Machines Rules, 2008. The applicant contended that they are liable to pay duty based on the capacity of their packing machines as per Notification no. 30/2008-CE(N.T) dated 1.7.2008. They declared not having any packing machine for Pan Masala Gutka production, supported by evidence that no raw materials were received for such manufacturing. Information obtained under RTI further confirmed the absence of a pouch packing machine for Pan Masala. The Revenue argued that the applicant failed to follow the procedure under the Rules and did not claim abatement for non-production of notified goods. However, the Tribunal noted that the applicant had submitted a declaration stating the absence of a packing machine for Pan Masala Gutka, leading to a lack of evidence supporting the demand.

The demand was confirmed under the Central Excise Act, 1944, and the Pan Masala Packing Machines Rules, 2008. The Revenue alleged non-compliance with the Rules, but the Tribunal observed that the applicant had provided a declaration stating the absence of a packing machine and no production of Pan Masala Gutka. Moreover, the RTI response indicated no findings regarding the existence of a packing machine for Pan Masala. The adjudicating authority's conclusion that the applicant manufactured Pan Masala Gutka based on the lack of intimation or abatement claim was deemed presumptuous by the Tribunal. Given the applicant's declaration and the absence of verification, the Tribunal found in favor of the applicant, waiving the pre-deposit requirement and staying the recovery during the appeal's pendency.

In conclusion, the Tribunal granted the applicant's request for waiver of pre-deposit of duty, interest, and penalties, as the demand lacked substantial evidence of manufacturing and clearing Pan Masala Gutka without paying duty as per the applicable Rules. The Tribunal emphasized the importance of verifying facts before confirming demands and highlighted the applicant's compliance with the declaration requirements, leading to a favorable decision in their favor.