2018 (6) TMI 319 - AT - Central Excise

Tribunal rules in favor of appellant on duty liability, emphasizes manufacturers' declarations

M/s Shyam Traders Versus Commissioner, Central Excise, Lucknow

The Tribunal allowed the Misc. Application, holding the appellant liable to pay duty only for the 32 machines in operation as per their declaration. The ... Rectification of mistake - Rectification/ clarification of Final Order no. 70448/2018 dated 05 March, 2018 - Compounded Levy Scheme - Declaration as per N/N. 30/2008-CE(NT) read with N/N. 42/2008 both dated 01 July, 2008 - Held that:- The appellant is correct in objecting to the demand for the 47 machines instead of 32 machines for the moth of July, 2008. We further find that this issue has escaped determination in the aforementioned final order of this tribunal in the appeal. Accordingly, we allow the Misc. Application and hold that that appellant shall be liable to pay duty for the month of July only 32 machines, which were found in operation, as per the declaration. Window to decided the number of machines operating - Held that:- The appellant exercised the option on 10.07.2008. On 03 July, itself they informed the Department that they wish to operate only 32 machines out of the total 47 machines, which declaration was not found to be untrue. In this view of the matter we hold that there is no application of Rule 8 of PMPM Rules and accordingly, we set aside the demand of ₹ 93,75,000/- confirmed in the impugned Order-in-Original alongwith interest thereon. The Final Order No. 70448/2018 dated 05 March, 2018 stands supplemented and or clarified by this order - ROM Application allowed. Issues:Capacity determination for levy of duty under the compounded levy scheme for manufacture(s) of pan masala/gutkha.Analysis:The appellant filed a Misc. Application seeking rectification/clarification of the Final Order in Appeal No. E/219/2011 dated 05 March, 2018. The issue revolved around the compounded levy scheme for pan masala/gutkha manufacturers, effective from 01 July, 2008. The appellant declared their intention to operate only 32 out of 47 machines in their factory for the month of July, 2008. Despite this declaration, the Deputy Commissioner fixed the capacity at 47 machines, leading to a demand for duty on all 47 machines. The appellant raised objections and filed representations, but a show cause notice was issued demanding duty on all 47 machines. The impugned Order-in-Original upheld the demand based on Rule 8 of the Pan Masala Packing Machines Rules. The Tribunal found merit in the appellant's objection, noting that the issue of demand for 47 machines was not addressed in the final order. The Tribunal allowed the Misc. Application, holding the appellant liable to pay duty only for the 32 machines in operation as per their declaration. It was emphasized that manufacturers had the option to decide the number of machines to operate and pay duty accordingly. The Tribunal concluded that the appellant's declaration to operate 32 machines was truthful, and Rule 8 of the PMPM Rules was not applicable. Consequently, the demand of &8377; 93,75,000/- confirmed in the impugned Order-in-Original was set aside, along with interest. Other issues decided in the Final Order remained unaltered, and the Tribunal clarified and supplemented the Final Order dated 05 March, 2018.This judgment highlights the importance of accurate capacity determination under the compounded levy scheme for pan masala/gutkha manufacturers. It underscores the significance of manufacturers' declarations in deciding the duty liability based on the machines in operation. The Tribunal's decision focused on upholding the appellant's truthful declaration to operate 32 machines, emphasizing the need for authorities to consider such declarations in determining duty liability. The judgment serves as a reminder of the procedural requirements and the obligation of authorities to address representations and objections raised by taxpayers before issuing demand notices. By setting aside the demand for duty on all 47 machines and clarifying the correct duty liability, the Tribunal ensured fairness and adherence to the provisions of the PMPM Rules.