9911796707
TMI Blog2012 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... d applicability of second proviso of Sub-Section 2 of Section 3-A of the Act has also to be considered by the Tribunal to which the tribunal has not adverted. - Direction to Pre-deposit reduced from 3 crores to 2 crores. - Central Excise Appeal No. 478 of 2012, 476 of 2012 - - - Dated:- 3-4-2012 - Ashok Bhushan and Manoj Misra, JJ For Appellant: Rahul Agarwal, Bharatji Agrawal For Respondent: Amit Mahajan JUDGEMENT Heard Sri Bharatji Agrawal, learned Senior Counsel assisted by Sri Rahul Agarwal and Sri Vishwajit Dubey, counsel for the appellant and Sri B. K.Singh Raghuvansi appearing for department. These two appeals under Section 35-G of the Central Excise Act, 1944 filed by the same appellant, are challenging the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the competent authority in respect to the packing machines which were inoperative, however, abatement was set aside in an appeal filed by the department. It has been further submitted that Tribunal failed to take into consideration the second proviso of sub-section 2 of Section 3-A of the Act. We have carefully considered the submissions from both the sides and perused the records. Coming first to the question of abatement, for the period of non-production, Rule 10 of Pan Masala Packing Machines (Capacity determination Collection of duty) Rules 2008, which governs the abatement is reproduced below: "Abatement in case of non-production of goods:- In case a factory did not produce the notified goods during any continuous period of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a continuous period of 15 days or more in relation to inoperative machines. The benefit in duty is entitled to be given to the concerned. He submits that in the present case on a prior information, inoperative packing machines were sealed, which has been noticed in the order passed by the Commissioner. Hence the liability to duty for even those goods which could not produced due to stoppage of functioning of the machines has been levied. He submitted that against the demand of Rs.3,91,19,765/- appellant has already deposited the Rs.1,69,99,932 and against the .8,59,46,469 appellant has deposited the 3,00,00,000. He submits that appellant has made substantial deposit, hence it was a fit case where the tribunal ought to have heard the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ines have been changed during the month or that some machines were not working during the entire month, the number of operative packing machines shall be taken as the maximum number of packing machines installed on any day during the month and even if, a machine was not working for certain periods in a month, the same shall be deemed to be operating packing machines for the entire month. Thus, if out of 10 operating packing machines declared by the assessee, one machine during a particular month was operated for only 20 days, for the purpose of calculation of duty, all the ten machines shall be deemed to have operated for the entire month and the machine which operated only for 20 days will not be treated as having operated for 2/3 month bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment itself on a notice given by the appellant have to be looked into for determining the issue. The scope and applicability of second proviso of Sub-Section 2 of Section 3-A of the Act has also to be considered by the Tribunal to which the tribunal has not adverted. The Division Bench in I.T.C. LTD. has observed that: "if an appellant having a strong prima facie on merit, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there maybe no financial restrain on the appellant running in a good financial condition. The expression undue hardship has a wider connotation". The Division Bench has made the said observation while interpreting Section 35 F of Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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