2017 (11) TMI 1326 - AT - Central Excise

Clandestine removal - penalty - manufacture of tobacco - whether the packing machine found in the appellant s premises was operational or not? - Held that - The panchnama drawn by the officers on the date of their visit clearly reveals that the machine was in running condition and the appellant was engaged in the production of unmanufactured tobacco - there is nothing in the said panchnama to suggest that packing machine in question was sealed at different points - On 15.07.2011, the single machine in the appellant s factory was found not sealed and operational. As per the provisions of the Rules, duty is required to be paid on quantity of pouches deemed to be produced on the basis of the number of operational packing machines installed in factory. As per these rules, the actual quantity of goods manufactured is immaterial. As on 15.07.2011, one packing machine was found to be operational. Consequently duty is liable to be paid as prescribed for one packing machine. Appeal dismissed - decided against appellant.

Summary

Issues:
Appeals against Order-in-Original confirming duty demand and penalties for clandestine clearances.

Analysis:
The appeals were filed against Order-in-Original No. 49/2013 confirming a duty demand of ?1,74,25,000 against a company engaged in tobacco manufacturing and trading, with penalties imposed on connected appellants. The main issue revolved around the sealing and operation of a packing machine used for tobacco pouches. The officers found the machine sealed in 2010 but operational in 2011, leading to proceedings and the impugned order.

The appellant's advocate argued that the machine was sealed at multiple points in 2010, so it couldn't have been operational in 2011 with just one seal broken. He also contested the panchnama's validity, highlighting discrepancies in witness presence. On the contrary, the Revenue's representative refuted the multiple seal claim, citing consistent electricity usage and statements admitting machine use. They maintained that the machine was operational in 2011, justifying the duty demand and penalties.

The Tribunal analyzed the evidence and concluded that the machine was indeed operational in 2011 based on the panchnama and laborers' activities. There was no mention of multiple seals in the records, and the appellant failed to raise the issue during or after the officers' visit. Given the duty payment rules for operational machines, the duty demand for the period was upheld, supported by electricity usage data. The Tribunal dismissed the appeals, affirming the impugned order.

In summary, the Tribunal's decision hinged on the machine's operational status in 2011, disregarding the appellant's late claim of multiple seals. The duty demand was upheld based on the rules governing packing machines and consistent electricity consumption. The judgment highlighted the importance of timely objections and adherence to procedural requirements in such cases.