2023 (9) TMI 181 - AT - Central Excise

Denial of Abatement claim - two FFS packing machines PK-91 GMP Model installed by the Appellant are 'single track' or 'double track' packing machines - determination of Annual Capacity of production and the duty thereon - HELD THAT - It is found that a track mentioned in the same is the physical embodiment implementing flow along line A feed track mentioned in the report by Dr. Kore is a subsystem level classification, and different from track referred to in No. 11/2010 Central Excise (N.T.) dated 27th February, 2010 - on the basis of study conducted by in past, it is reconfirmed that FFS Packing Machines PK-90/PK-91 GMP model manufactured by Pakona Engineers (I) Pvt. Ltd. are Horizontal, Single Line, Single Track, duplex machines for forming filling and sealing of pouches. Pakona made FFS machines available at the Guwahati factory of the Appellant are PK-91 GMP model and that this model is a variant of PK-90 model, modified for the purpose of production of pouches of different sizes, otherwise the functions and features of both the models are identical. It is observed that the Appellant has been filing declarations as per Rule 6 of the CTPM Rules in 2010 and the Deputy Commissioner has passed orders fixing their Annual Capacity of production and the duty payable thereon, by treating the PK-91 packing machines as 'single track' machines. However, the Deputy Commissioner, Guwahati has not accepted their running declaration for the month of January 2011, based on the investigation initiated by the department in their Noida Unit. The Pakona make PK-91 packing machines installed at Guwahati Unit are identical to the Pakona make PK-90 packing machines installed at their Noida unit, which is evident from the Technical Literature as well as the report of IIT, Delhi - the department cannot raise any demand for the past period without challenging those orders. In January 2011, when they filed the Form-1 for fixing the Annaual Capacity of production, the Deputy Commissioner has passed order dated 05.01.2011, without issuing any notice to the Appellant. The Lower Authority has suo moto passed the impugned Order-in-Original without giving any chance of hearing to the opposition party, thereby denied their right of natural justice - Lower Authority has erred in not issuing the Show cause Notice to the Appellant for modifying the Annual Capacity of production of the disputed machine from 'Single track' to 'Double track' - Lower Authority has erred by reviewing his own order, thereby violated Section 35 of the Central Excise Act, 1944. Thus, the two PK-91 GMP Model packing machines are 'single track' machines. The demand of duty confirmed in the impugned order by treating the machines as 'Double Track' machines is not sustainable - the impugned order confirming the demand of duty along with interest and imposing penalty equivalent to the duty, is set aside, and the Appeal filed by the appellant is allowed.

Summary

Issues Involved:

1. Classification of the two FFS packing machines (PK-91 GMP Model) as 'single track' or 'double track' machines.
2. Validity of the demand for duty based on the classification of the machines.
3. Adherence to principles of natural justice in modifying the Annual Capacity of production.

Summary of Judgment:

Issue 1: Classification of Machines
The primary issue was whether the two FFS packing machines (PK-91 GMP Model) installed by the Appellant were 'single track' or 'double track' machines. The department categorized these machines as 'Double Track Machines' based on a report by Dr. Kore of IIT, Guwahati. However, the Appellant contended that these machines were 'single track' based on reports by IIT Delhi professors, who concluded that the machines were 'single track' after analyzing Dr. Kore's report. The Tribunal agreed with the IIT Delhi report, noting that the machines used a single laminate roll and produced pouches in a single line, thus classifying them as 'single track' machines.

Issue 2: Validity of Duty Demand
The demand for duty was based on the classification of the machines as 'double track'. Since the Tribunal concluded that the machines were 'single track', the duty demand based on the 'double track' classification was deemed unsustainable. The Tribunal also referenced a similar issue resolved by the Hon'ble Allahabad High Court, which had accepted the 'single track' classification for the same model of machines.

Issue 3: Principles of Natural Justice
The Appellant argued that the Deputy Commissioner modified the Annual Capacity of production without issuing a notice, thus violating principles of natural justice. The Commissioner (Appeals) had set aside the Deputy Commissioner's order on the grounds of denying the right to a hearing and not issuing a show cause notice. The Tribunal upheld this view, emphasizing that the department cannot change its stand without proper notice and hearing.

Conclusion:
The Tribunal held that the PK-91 GMP Model packing machines are 'single track' machines. Consequently, the demand for duty and penalties based on the 'double track' classification was set aside. The appeal filed by the Appellant was allowed, and the department's appeal was rejected. The Tribunal upheld the order of the Commissioner (Appeals) and concluded that the demand for the past period was not sustainable due to procedural violations.