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2022 (9) TMI 1338 - AT - Central ExciseClandestine Removal - Gutkha - period involved in the show cause notice is from December 2007 to 04.08.2008 - demand of duty alongwith levying penalty on Partner - HELD THAT - It is not in dispute that the search was conducted on 04.08.2008. At that time the unamended rule 17(2), which had come into force on 01.07.20008, was operating. The amended rule 17(2) came into force on 20.10.2008 and there is nothing in the amended Rules that may show that they shall apply retrospectively w.e.f. 01.07.2008. The contention of the learned authorised representative appearing for the department that merely because the amended rule 17(2) states that such machine shall be deemed to have been in operation since 01.07.2008 it would mean that the amended rule 17(2) shall apply retrospectively from 01.07.2008 cannot be accepted The amended rule 17(2) would apply to any search conducted after 20.08.2008 and it would only be in such a situation that the consequence would flow from 01.07.2008. At the time when the search was conducted on 04.08.2008, rule 17(2) had not been amended and the amended rule 17(2) cannot impose duty at a higher rate with retrospective effect. In the present case, if the contention of learned authorised representative appearing for the department is accepted, the respondent would be subjected to higher rate of duty then what was prevailing at that time the search was conducted. Penalty on Sumit Agarwal - HELD THAT - No submission was made by learned authorised representative regarding that part of the order by which the Principal Commissioner refrained from imposing penalty on Sumit Agarwal as penalty had already been imposed upon M/s. OM Fragrances. Appeal of Revenue dismissed.
Issues Involved:
1. Clandestine manufacture and clearance of excisable goods without registration. 2. Applicability of amended Rule 17(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. 3. Demand and recovery of Central Excise Duty. 4. Imposition of penalties on individuals and the company. 5. Confiscation and redemption of seized goods. 6. Appropriation of deposited amounts towards duty payable. 7. Calculation of duty for the period from December 2007 to August 2008. Issue-wise Detailed Analysis: 1. Clandestine Manufacture and Clearance of Excisable Goods Without Registration: The respondent, M/s. OM Fragrances, was accused of manufacturing and clearing Gutkha under the brand name 'India Gold' without obtaining Central Excise Registration. The department issued a show cause notice on 29.01.2009, alleging that the respondent was involved in the clandestine manufacture and clearance of excisable goods, thereby contravening the provisions of the Central Excise Rules, 2002 and the Central Excise Act, 1944. 2. Applicability of Amended Rule 17(2) of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008: The central issue in the appeal was whether the amended Rule 17(2), which came into effect on 20.10.2008, should apply retrospectively from 01.07.2008. The Principal Commissioner applied the unamended Rule 17(2) for the period from 01.07.2008 to 04.08.2008, leading to the dropping of a significant portion of the duty demand. The department argued that the amended rule should apply retrospectively. 3. Demand and Recovery of Central Excise Duty: The show cause notice demanded Central Excise Duty of Rs. 96,47,361/- for the period from December 2007 to 04.08.2008. The Principal Commissioner, after remand, confirmed a duty of Rs. 26,29,439/- based on the unamended rule and recalculated the duty for the period from December 2007 to August 2008. 4. Imposition of Penalties on Individuals and the Company: Penalties were initially imposed on M/s. OM Fragrances and its partners. The Principal Commissioner, in the remanded order, imposed a penalty of Rs. 26,29,439/- on M/s. OM Fragrances but refrained from imposing a penalty on Sumit Agarwal, considering that a penalty had already been imposed on the company. A penalty of Rs. 1,00,000/- was imposed on Rajeev Gupta. 5. Confiscation and Redemption of Seized Goods: The order confirmed the confiscation of seized finished goods valued at Rs. 3,85,000/- under Rule 25 of the Central Excise Rules, 2002. However, the respondent was given an option to redeem the goods on payment of a redemption fine of Rs. 1,00,000/-. 6. Appropriation of Deposited Amounts Towards Duty Payable: The Principal Commissioner ordered the appropriation of Rs. 75,00,000/- deposited by the respondent during the investigation towards the duty payable. 7. Calculation of Duty for the Period from December 2007 to August 2008: The duty for the period from December 2007 to June 2008 was undisputed. The duty for July 2008 and a part of August 2008 was calculated based on the unamended Rule 17(2), resulting in a total duty demand of Rs. 26,29,439/-. Conclusion: The Tribunal upheld the Principal Commissioner's application of the unamended Rule 17(2) for the period from 01.07.2008 to 04.08.2008, rejecting the department's contention for retrospective application of the amended rule. The Tribunal dismissed the department's appeal, confirming the recalculated duty demand and the penalties imposed by the Principal Commissioner. The appeal was dismissed, and the order pronounced on 29.09.2022.
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