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TMI Blog2013 (12) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... that deeming provision will be applicable from 1st April of the financial year in which unit was found to be not registered cannot be accepted – there was no prima facie fault in the reasoning given by the Tribunal that the deeming provision will be applicable unless evidence to the contrary is provided to the satisfaction of the Central Excise Officer. Te appellant admitted that the agreement was executed on 1.10.2010 and the manufacture started from January, 2011 for which he also deposited admitted excise duty - The deeming provision as held by the Tribunal prima facie applied with effect from 1st April, 2010 in case of unit, which is not registered and not from 1st April, 2011 -this question is still to be considered by the Tribunal – ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollection of Duty) Rules, 2008 the deeming clause of the period for operating the machines will be applicable to the applicant with effect from 1st April of the financial year i.e. 1st April 2010 and not 1st April, 2011 as claimed by the appellant. The Tribunal found that deeming clause under Rule 17 (2) will be applicable, unless evidence to the contrary proves to the satisfaction of the Central excise Officers that the machines were used in the previous financial year as well. In the present case the brand owner Shri Sunil Kumar Agarwal, Director of M/s Astha Fragrance Pvt. Ltd. has executed agreement with the petitioner to run the unit on 1.10.2010. It was admitted that unit was running in the month of January, 2011. In the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without payment of duty is detected, duty is to be demanded from the first month of the financial year in which the machines were found available, unless evidence to the contrary is provided to the satisfaction of proper officer, such machines are deemed to be in operation since the 1st day of April of the financial year in which the unit was found to be not registered. It is an undisputed fact as the same has been admitted by the noticee no.1 in his statement dated 19.04.2011 recorded under Section 14 of the Central Excise Act, 1944, that they were indulged in unauthorized operation of the manufacture of Pan Masala since the last three months i.e. January 2011. This makes it explicit that the Pan Masala packing machines were run by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay an amount of 25% of the central excise duty as per the provisions contained in the first proviso to Section 11AC of the Act. He also directed recovery of interest under Section 11AA and 11AB of the Act and further imposed penalty of Rs.2,40,50,000/- on Shri Sunil Agarwal under Rule 26 of the Central Excise Rules, 2002. The Tribunal considered the application for waiver of pre-deposit and has given substantial relief to the appellant. After recording findings that the appellant has deposited Rs.55.50 lacs, it gave waiver of the entire remaining amount of central excise duty, as reduced by Rs.55.50 lacs and directed the appellant to deposit a further amount of Rs.55 lacs towards penalty within 12 weeks. Shri Ashish Agrawal, learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited admitted excise duty of Rs.55.50 lacs. The deeming provision as held by the Tribunal prima facie applied with effect from 1st April, 2010 in case of unit, which is not registered and not from 1st April, 2011. In any case this question is still to be considered by the Tribunal and thus we do not express any final opinion on the issue. The petitioner has been given substantial relief both in depositing the excise duty as well as the penalty and thus we do not propose to interfere in the appeal. We also find that no substantial question of law arise for consideration by the High Court. The central excise appeal is dismissed. On the request of Shri Ashish Agrawal the time of deposit is extended by four weeks. The deposit will be m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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