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TMI Blog2017 (3) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... - demand set aside - appeal allowed - decided in favor of assessee. - E/161/2010-EX[SM] - A/70264/2017-SM[BR] - Dated:- 9-12-2016 - Mr. Anil Choudhary, Member (Judicial) Shri R.K. Tewari, Advocated for Appellant Shri P.K. Singh, Superintendent (AR), for Respondent Per: Anil Choudhary The present appeal is filed by the appellant, M/s Som Aromatics Order-in-Appeal No.299 to 301/CE/APPL/NOIDA/2009 dated 30/10/2009 passed by Commissioner of Central Excise Customs (Appeals), Noida. 2. The issue in this appeal by the appellant-assessee, engaged in manufacturer of Pan Masala Gutkaha - falling under chapter 24 of the Central Excise Tariff Act, 1985, the fact that the appellant-assessee was under normal levy scheme under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that they run the factory from 8 hours to 20 hours everyday and on the date of inspection the production was started at 8:30 hours. As per physical verification made stock of Gutkha was 61 running bags of 308 Polly pouches containing 55 pouches of MRP and 51 running bags of 308 Polly pouches containing 55 pouches of ₹ 1 MRP. Accordingly, Revenue concluded that the factory was running and manufacturing for 110 minutes more each day, then their declared number of working hours. Accordingly, on the basis of production capacity as stated, it was estimated that the appellant is manufacturing 70 pouches per minute and multiplied with 110 minutes for 48 machines, worked out extra production and/or clandestine production at 3,69,600 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming duty of ₹ 26,72,430/- with interest and further penalty of ₹ 30,42,030/- was imposed under Rule 25 of Central Excise Rules, 2002 read with 11AC of the Central Excise Act, 1944. Further penalty ₹ 1 lakh was imposed on each of the partners and Shri Atul Kumar Agarwal. Being aggrieved the appellant and its partners preferred appeal before ld. Commissioner (Appeals) who vide the impugned order observed that the demand has been concluded for a period of one month - 26 days, which is on the basis of actual position of stocks and operation of machines, beyond the declared duration. Further observing that the appellant-assessee have not contested the panchnama and further placed an affidavit of Shri Anandi Prasad - Labour Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 did not bring into existence any compounded levy scheme and the whole show cause notice is misconceived, as the demand have been raised as if the compounded levy scheme was in force. He also urges that soon after September Revenue vide Notification No. 38/2007 under powers conferred under Rule 15 of Central Excise Rules, 2002 came out with a compounded levy scheme on optional basis. This also proves and establishes that no compounded levy scheme was invoked during the period prior to 19/12/2007. Accordingly, the show cause is wholly misconceived, without any basis and the impugned demand is fit to be set aside along with penalty. 5. The ld. A.R. relies on the impugned order and takes me through the Panchnama and seizure memo and reit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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