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TMI Blog2017 (5) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... d further order of confiscation of two pouch packing Machines valued at Rs. 60,000 with option to redeem by paying fine of Rs. 15,000. 2. The brief facts are that the appellant engaged in the manufacture of Pan Masala, Pan Masala containing Tobacco (Gutkha) and Pan Samagri falling under different sub-headings of Central Excise Tariff. The appellant is registered with the department and have been paying Central Excise duty earlier under Section 3 of the Act and subsequently under Section 3A with effect from 01.08.2008 under Pan Masala Packing Machines (Capacity determination and Collection of duty) Rules, 2008 (hereinafter referred to as the Rules). A surprise check was conducted on 26.10.2008 at 11:00PM by Central Excise Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 30,000. As regards further query, why appropriate information was not given to Revenue for addition of machines. Mr. Tiwari stated that it being Saturday and Sunday on 25th and 26 October and the office of the Excise being closed on these dates, he could not inform. Further, in the statement recorded on the same day, it has been recorded under Section 14 that Mr. Tiwari stated that two other pouch packing machines which were kept in the open premises of the factory, these machines were acquired on 25.10.2008 and 26.10.2008, each machine is valued Rs. 30,000. It has been further stated that on the product 'Shankh' Pan Samagri, the excise duty is being paid on MRP based value and on the Pan Masala and Gutkha is being paid on compounded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint with the machine supplied on 25.10.2008 another machine vide invoice No.14 dated 26.10.2008 was sent by way of replacement and Mr. Tiwari was supposed to return the machine sent earlier. But earlier machine was not immediately returned and the same was retained by Mr. Tiwari. Further, no transport document or evidences are available for the second machine also. The supplier also produced the Xerox copies of the two invoices for the two machines supplied to the appellant- assessee. It was further stated by the supplier, on enquiry by Revenue, that the pouch packing machine is supplied in knock down condition and after reaching the premises of the buyer, after unloading the machine is reassembled. It has been further informed that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in use or not, working condition or not. Accordingly, Excise duty of Rs. 25 lakh was demanded, Central Excise Duty of Rs. 12,50,000/- per machine under the Pan Masala Packing Machines Rukes, 2008 read with provisions of Section 11 A(1) of the Act with further proposal to impose penalty under Rule 17(1) of the said Rules read with Rule 25 of the Central Excise Rules, 2002. With further proposal to confiscate the two pouch packing machines valued at Rs. 60,000/-. The SCN was adjudicated on contest and the proposed demand confirmed with equal amount of penalty and further two pouch packing machines were ordered to be confiscated with option to redeem by paying redemption fine of Rs. 15,000/-. 5. Being aggrieved, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no manufacture was taking place from those machines at the time of inspection. He further urges that it was categorically stated by the proprietor at the time of inspection that the said two machines have arrived, one machine a day before and the other on the very day of inspection and they are yet to be installed and put to use. This fact have not been found untrue by the Revenue as is evident from the statements subsequently recorded from the manufacturer of the machines, whose statement was recorded under Section 14 of the Act. He further points out to the observation of the adjudicating Authority from the findings in the Order-in-Original wherein it is mentioned that the installed machine in terms of these Rules is a machine, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is admitted fact that the factory comprises of covered space only. There is no open space in the approved factory premises. It is further admitted fact that the two additional machines were found lying in the open premises in uninstalled condition. I further find that the contention of the proprietor of the appellant on the date of inspection that the said machines had arrived in the last two days and they were lying in uninstalled condition and that one was defective and another yet to be installed and/or brought inside the factory, and these facts have not been found to be untrue and further corroborated by the supplier of the machines, in his statement under Section 14. 8.1 In view of the findings I hold that the duty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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