TaxTMI 
TaxTMI 
2015 (9) TMI 514
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....mplete ban on use of plastic pouches in packing of tobacco, gutkha etc w.e.f. 01.03.2011. The Appellant discharged the duty liability for the month of February 2011 within the stipulated period as per Rules 2008. It came to their knowledge that the Ministry of Environment & Forest, Govt. of India, issued the Notification S.O.S. No.249 (E) dt.04.02.2011 banned use of plastic pouches in packaging of Pan Masala and Gutkha with immediate effect. The Appellant was unable to continue their production and therefore, by letter dt.08.02.2011, they informed the jurisdictional Assistant Commissioner, Central Excise & Customs, with a request for sealing their machines as required under Rules 2008 as they closed down their factory. Accordingly, the Superintendent of Central Excise, Vadodara, on 10.02.2011, sealed the machines installed in the Appellant's factory. Subsequently, the Hon'ble Supreme Court by order dt.17.02.2011 directed that the notification will be effective from 01.03.2011. Hence, the Appellants re-opened their factory and pursuant to their application for de-sealing of the machines, the machines were de-sealed on 17.02.2011. The Appellants filed a refund claim of duty o....
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....uary 2011 by the 5th of the same month as per Rule 9 of the Rules 2008. By letter dt.08.02.2011, they informed to their jurisdictional Assistant Commissioner of Central Excise & Customs as under:- "We are engaged in the Manufacture of Pan Masala/Gutkha, for packing of which we used Plastic Pouches. We are working under Compounded Levy Scheme from July 2008. On 17.12.2010, Hon'ble Supreme Court had ordered a Ban on the use of Plastic Pouches in the Packaging of Tobacco, Gutkha & Pan Masala with effect from 01.03.2011. As per these order, we are planning to find the suitable substitute. It is to be effective from 01.03.2011.The Government of India, Ministry of Environment & Forest has issued a Notification dt.04.02.2011, Banning the use of Plastic for Packaging Gutkha/Pan Masala & other Tobacco Products which comes into immediate effect. The Notification has enforced the Ban without considering, direction of the Supreme Court - Banning Plastics for Packing - without considering the difficulties of the manufacturer, with immediate effect. Before issue of this Notification, the Government should have considered the provisions of Notification No.30/08, dt.01.08.2008 issued by th....
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.... framed in exercise of powers conferred by sub-section (2) and (3) of Section 3A of Central Excise Act, 1944. It is clear from sub-section (1) of Section 3A of the said Act that legislature introduced the provisions of Section 3A to safeguard the interest of Revenue to the extent of evasion of duty in regard to such notified goods, having regard to the nature of the process of manufacture or production of excisable goods. In terms of Sub-section (2) of Section 3A, the Central Government may issue notification to frame the rules for determination of annual capacity of production of the factory, to specify the factor relevant to the production of such goods, which is deemed to be produced by use of such factor and to provide for determination of the production capacity of the factory, in which such goods are produced on the basis of such factor. Sub-section (3) of Section 3A of the Act is a charging section that the duty of excise on notified goods shall be levied, at such rate, on such factor relevant to the production, as specified by notification issued by the Central Government and collected in such manner as may be prescribed. Proviso to sub-section (3) of Section 3A extended th....
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....ines installed in the factory and who has filed an intimation for surrender of registration with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, for this purpose, the duty payable by him for the month shall be re-calculated on pro-rata basis and if there is any excess payment, it shall be refunded to a manufacturer by 20th day of the following month. On reading of 4th Proviso to Rule 9 and Rule 16 of Rules 2008, it is clear that there are provisions for refund of excess payment of duty in certain cases and the contention of the learned Authorised Representative for the Revenue that there is no provision for refund of duty, cannot be accepted. 9. There is a distinction between the Rule 10 and Rule 16 of the said Rules. The claim of abatement under Rule 10 will apply, in case, a factory did not produce the notified goods during any continuous period of 15 days or more and followed the procedure as mentioned therein. On the other hand, Rule 16, starts with the words "Notwithstanding anything contained in these rules", make it clear that nevertheless all the provisions i....
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....4) ELT 202 (P&H), while dealing with Section 3A of the Central Excise Act, 1944 read with Rule 96ZQ(2)of erstwhile Central Excise Rules, 1944, observed that it was wholly unjust for the Department to recover the duty for the whole month of November, during which, the factory had not commenced production. When the factory was not in production, then obviously, it is not liable to pay duty during the period of non-production. The Tribunal in the case of Rajat Industries Pvt.Ltd. Vs CCE Delhi-I - 2012 (284) ELT 581 (Tri-Del), while dealing with the present Rules 2008, following the decision of Hon'ble Punjab & Haryana High Court in the case of Godwin Industries Pvt.Ltd. held as under:- 10.In order to find answer to this question it would be useful to have a look on the relevant provisions of the Central Excise Act, relating to levy and collection of excise duty. Section 3 of the Excise Act is the main charging section which provides that there shall be levied and collected excise duty on excisable goods which are produced or manufactured in India. From this, it is evident that excise duty is an incidence of tax on production or manufactured of the goods. That being the case, it i....
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....12.2011 would show that the Appellant permanently ceases to work in respect of all the machines installed in the factory and it would be followed for surrender of registration. Incidentally, by order dt.17.02.2011, the Hon'ble Supreme Court directed that the ban will be effective from 01.03.2011. As per the direction of Hon'ble Supreme Court, the Appellant re-opened the factory on 17.02.2011. The jurisdictional Superintendent of Central Excise, de-sealed the machines. In such a peculiar facts and circumstances of the case, in our considered view, the refund claim filed by the Appellant would come within the purview of Rule 16 of Rules 2008. 14. The learned Authorised Representative for the Revenue, during the course of hearing, submitted that the Appellant re-opened the factory on 17.02.2011 and therefore, it can not be treated as "permanently ceases to work". They have also not surrendered registration. It is difficult to accept the contention of the learned Authorised Representative for the Revenue, as the Appellant re-opened the factory and therefore, they are not eligible for refund of duty. There is no provision in Rules 2008 that after declaring "permanently ceases t....