9911796707
TMI Blog2023 (9) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... ongwith interest and penalties - HELD THAT:- The claim of the appellant that licence for manufacture of gutkha had not been obtained appears to have been overlooked even though it should have been possible to have this aspect verified. Sadly, that did not happen. It was improper on the part of the adjudicating authority to assume to the contrary and to presume that either the administration of the state government was lax or that the appellant had operated outside the law with not a whiff of illegal activity coming to the public eye. No inquiry was taken up to ascertain destination of impugned product , if any, had been manufactured from deployment of machine intended for manufacture of licenced product. There is no evidence of cland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise, Nagpur that is impugned here. 2. Strangely, the impugned order has also directed that 34. In view of the foregoing I pass the following order xxxxxx 5) I reject the application or surrender of registration certificate of the Noticee and order the registration be kept alive till the issue is set tled and the levy is paid under Central Excise Act, 1944 read with Central Excise Rules, 2002. which, in the context of the peculiar circumstances prevailing in Maharashtra insofar as the impugned goods are concerned, does throw up certain fundamental aspects of tax obsession and its purported claim to prevail over societal obligation articulated in legislative will. It is common ground that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nil and of one machine for production of mutton masala even in the absence of licence to manufacture the other product as intended. 4. The notice alleged that the failure to file declaration under rule 6 of Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 and suppression of installed machinery sufficed to proceed with recovery for the period from 1st July 2008 till 30th November 2008. The adjudicating authority, taking note of the deficiency and, more especially, of the machine purportedly for production of mutton masala packets that could have been used in gutkha packing, confirmed the demand. 5. Learned Counsel for appellant submitted that the case against them is based on presumption of usage of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification No. 42/2008 dated 1.7.2008 and did not pay the duty as per compounded levy scheme. The Noticee contended that the Notification No. 29/2008, 30/2008 and 42/2008 are not applicable to them in any case because though the date of effect is 1-7-2008, the blank proforma for filling of declaration has been given to them on 10-11-2009 i.e. after 16 months and 10 days late by the Central Excise Office and asked it to be filed by 3 days time by superintendent. The Noticee further submitted that they submitted declaration in form -1 on 13-11-2009 within time period. The Noticee also contended that they have filed monthly returns regularly in form no. ER-1 stating Nil production and Nil clearance with Nil duty paid of notified goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their brand names etc. retail sale prices of the pouches to be manufactured during the financial year, the ground plan and details of the part or section of the factory premises intended to be used by him for manufacture of notified goods of different retail sale prices and the number of machine intended to be used by him in each of such part or section. However, it is observed that during the entire period i.e. from 01.07.2008 to 30.11.2009 the Noticee have neither filed any intimation to the department nor claimed any abatement for non production of said goods. Thus it is deemed that they have manufactured the Pan masala / Gutka for the entire period i.e. from 1.7.2008 to 30.11.2009. Therefore, I find that the Noticee has violated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonable by pandering, forcibly or otherwise, to the revenue instinct of tax administration. 11. There is no evidence of clandestine production. There is no evidence to suggest that appellant had used available machines to manufacture gutkha during the disputed period. The impugned order is silent about the state of affairs that prevailed prior to the Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 coming to force or any valid reason to suspect that appellant was manufacturing the product. The presumption owing to which the Rules were said to be applicable is not acceptable and the collection of tax on such assumptions is unthinkable. 12. Consequently, the appeal is allowed and impugned order set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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