9911796707
TMI Blog2013 (12) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... has while disposing of the application under Section 35F of the Central Excise Act for waiver of the pre-deposit of the Central Excise duty and penalty, directed the appellant to deposit an amount of Rs.55 lacs towards penalty within 12 weeks and report compliance by 10.12.2013. On the basis of the investigation in which the appellant was found running packing machines a 'Pan Masala' unit without registration with the department, a show cause notice was issued on 3.4.2012. During the course of adjudication the appellant admitted and paid excise duty of Rs.55.50 lacs for the period January, 2011. The Commissioner, Central Excise and Service Tax, Kanpur by an order dated 30.11.2012 found that in view of Rule 17 (2) of the Pan Masala Packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the jurisdictional Central Excise Office, then the duty liability of such unit shall be determined on the basis of number of packing machines found available in the premises of the unit and the retail sale price of the pouches manufactured with the aid of such packing machines and unless evidence to the contrary is provided to the satisfaction of the Central Excise Officer, such machines shall be deemed to have been in operation since the 1st day of April of the financial year in which unit was found to be not registered and shall be construed as operating packing machines for the purposes of rule 7 and dealt with accordingly. On perusal of the above provision, it emerges that in case when manufacture of the goods without obtaining reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without observing the provisions of Rule 6 and Rule 9 of the Pan Masala Rules with regard to filing of necessary declaration and payment of central excise duty respectively, the proposed demand of duty is liable to be confirmed and the same is recoverable from the noticee no.1. Accordingly I hold the same." The Commissioner Central Excise raised a demand of central excise duty to the tune of Rs.2,40,50,000/- recoverable under Section 11A (1) of the Central Excise act, 1944 read with Rule 7 of the Rules of 2008. An amount of Rs.55,50,000/- already deposited was appropriated against the demand. The Commissioner imposed penalty equivalent to the amount of duty on Shri Krishna Gopal Lawania under Section 11AC of the Act read with Rule 17 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount and the substantial question of law, which is still required to be adjudicated by the Tribunal, the Court may consider to waive the deposit of entire amount of penalty to avoid injustice to the appellant. Prima facie we are unable to agree with the submission of Shri Agrawal that the deeming provision will be applicable from 1st April of the financial year in which unit was found to be not registered. We also do not prima facie find any 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. In the present case the appellant admitted that the agreement was executed on 1.10.2010 and the manufacture starte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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