2015 (10) TMI 99

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....o. (ii), under Rule 26 of the Central Excise Rules, 2002. 2. At the outset, the ld. Consultant, appearing for the applicants, submits that on a visit to the factory premises of the applicants on 24-1-2012, the Visiting Officers had noticed a FFS Packing Machine, lying in idle condition adjacent to their factory. It is his submission that the said machine was not in working condition, as all the parts were not available in the said machine. Further, explaining the tobacco dust on the said machine, packing rolls and stock of tobacco found by the Visiting Officers, he has contended that it could not establish the fact that the said machine was in working condition. He further submits that the stock tobacco found by the Department, were....

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....ard both sides and perused the records. Prima facie, we find that on a visit to the factory of the applicant on 24-1-2012, the Visiting Officers noticed a FFS Packing Machine along with Printed Plastic Pouch Rolls of "Maruti Special Khaini" and "Maruti Sabasit Kada Khaini" of Rs. 2/- per pouch. Further, on verification, it was found that the said pouch packing machine contained some tobacco dust even though the machine was not in operation at the time of visit. The Officers also noticed in the premises adjacent to the said room, 46 bags of tobacco. Photograph of the said FFS Machine, Tobacco Pouch Rolls, are enclosed as Annexure 11 to 15 of the show cause notice (Page 109-113 of the Appeal Paper Book). The contention of the Revenue is that ....

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....nd that at no point of time, the applicant had informed the Department about the existence of such machine in their premises, hence, the claim of the applicant at this stage, that the machine was not in working condition, accordingly, no duty is required to be paid, cannot be out rightly accepted without analyzing the evidences on record and also the implication of the relevant Rules of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. In these circumstances, we are of the view that the applicant could not able to make out a prima facie case for total waiver of pre-deposit. Taking into consideration the financial hardship expressed by the applicant as well as the int....