TaxTMI 
TaxTMI 
2019 (7) TMI 904
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....er referred to as "PMPM Rules, 2008. M/s SMFPPL had filed declaration on 01.04.2011 in terms of Rule 6 of PMPM Rules wherein they declared the details of packing machines to be used for packing of Gutkha along with specific MRP of the pouches. The said declaration was as under: TABLE-'A' Sl. No. Floor Description of machines 1 Ground Floor 3 PMPM manufacturing Gutkha pouches having MRP of Rs. 3/-. 17 PMPM manufacturing Gutkha pouches having MRP of Rs. 1.5/-. 2 First Floor 3 PMPM manufacturing Gutkha pouches having MRP of Rs. 1/- each. 3 Second Floor 5 PMPM manufacturing Gutkha pouches having MRP of Rs. 2.5/-. 19 PMPM manufacturing Gutkha pouches having MRP of Rs. 1/-. TOTAL MACHINES OF VARIOUS MRPs 37 Pan Masala Packing Machines of MRP of Re. 1/- 17 Pan Masala Packing Machines of MRP of Re. 1.5/- 5 Pan Masala Packing Machines of MRP of Re. 2.5/- 3 Pan Masala Packing Machines of MRP of Re. 3/- TOTAL MACHINES IN THE FACTORY 62 Pan Masala Packing Machines However during surprise check it was found that in case of machines installed on ground floor the machines were manufacturing pouches as under: TABLE-'B' ....
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....laration filed under Rule-6 of PMPM Rules, 2008, declared MRP of pouches manufactured Actual MRP of pouches being manufactured at the time of surprise check Remarks 19 Re.1/- Re.1/- sealed pack roll - 20 Re.1/- Re.1/- - 21 Re.1/- Re.1/(Branch GOA 1000) - 22 Re.1/- Re.1/-sealed pack roll - 23 Re.1/- Re.1/- sealed pack roll - 24 Re.1/- Re.1/-No roll - 25 Re.1/- Re.1/-(Branch GOA 1000) - 26 Re.1/- Re.1/- - 27 Re.1/- Re.1/- - 28 Re.1/- Re.1/- - 29 Re.1/- Re.1/- - 30 Re.1/- Re.1/- - 31 Re.1/- Re.1/-(Branch GOA 1000) - 32 Re.1/- Re.1/-(Branch GOA 1000) - 33 Re.1/- Re.1/- - 34 Re.1/- Re.1/-(Branch GOA 1000) - 35 Re.1/- Re.1/- Gutkha pouches having MRP of Rs. 1.5/- lying in front of the machine 36 Re.1/- Rs. 1.5/- (Brand GOA 1000) - 37 Re.1/- No packing roll - 38 Re.2.5/- Re.2.5/- - 39 Re.2.5/- Re.2.5/- - 40 Re.2.5/- Re.2.5/- - 41 Re.2.5/- Re.2.5/- - 42 Re.2.5/- Re.2.5/- - 2. It was alleged that in....
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....ent MRP using various Pan Masala Machines (PMPM) installed in factory premises in the month of April‟2011, manufactured the pouches of GOA brand of higher MRP (Rs. 1.5/-) on machines declared for manufacturing gutkha of Re. 1/- MRP in contravention of declaration filed by them under Rule 6 of PMPM Rules, 2008 and has evaded the Central Excise duty. The show cause notice alleged that the Appellant unit has contravened the provisions of Rule 6 (6), 7 and 9 of the PMPM Rules, 2008 and that as the Appellant has manufactured the notified goods in contravention of their declaration, therefore as per the provisions of Rule 9 of the PMPM Rules, 2008 the rate of duty applicable to goods of Highest Retail sale i.e. Retail sale price of Rs. 3 shall be applicable in respect of all packing machines operated by the Appellant and a central excise duty of Rs. 22,32,00,000/- is payable by the Appellant unit. That the above acts of omission and commission on the part of Appellant unit has been committed wilfully with intention to evade duty and the extended period as provided under Section 11 A (4) of the Central Excise Act is applicable. It was therefore proposed to demand duty of Rs. 22,32,0....
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....do not hold any shares. The Ld. Adjudicating authority has reproduced in the impugned order only partial text of Section 266 of the Companies Act and has conveniently ignored reciting or referring to sub-section (5) of Section 266 of the Companies Act. Sub-section (5) of Section 266 of the Companies Act stipulates that provisions of Section 266 do not apply to a private company. Even otherwise, section 266 is wholly irrelevant, as the same is applicable to a company which is to be incorporated and not to an existing company. The ld. Commissioner has referred to Section 270 of the Companies Act to hold that the Directors existing in April 2011 were disqualified however he has ignored Section 273 of the Companies Act which categorically states that Section 270 will not apply to a private company. He also draws attention to clause 27 of Articles of Association of SMFPPL, which states that it shall not be necessary for a director to hold any share in the company. He submits that it is on record that Mr J.M. Joshi was not a director of SMFPPL since year 2000 and had also sold all his shares prior to initiation of investigation of the instant case. Therefore the Appellants had no control....
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....n any way concerned in transporting, removing, depositing, keeping, concealing, selling or purchasing or in any other manner dealt with any excisable goods which they knew or had reason to believe were liable for confiscation under Central Excise Act, 1944 or the Rules, penalty under Rule 26 cannot be imposed. 6. Shri A. Mishra Ld. AR appearing for the revenue supports the findings of the impugned order. He submits that since the goods other than of declared RSP has been found to be manufactured by the Appellant Unit, therefore the duty is liable to be paid as per highest RSP goods. He also supports the findings for imposition of penalty upon co-appellants. 7. Heard both the sides and perused the records. We find that the Unit had filed declaration on 01.04.2011 in terms of Rule 6 of PMPM Rules wherein they declared the details of packing machines to be used for packing of Gutkha along with specific MRP of the pouches. However the unit was found to be engaged in packing pouches of higher MRP in contravention of declaration filed by them under Rule 6 of PMPM Rules, 2008. Clearly the Appellant unit contravened the provisions of Rule 6 (6), 7 and 9 of the PMPM Rules, 2008 and si....
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....rdingly penalty imposed upon Shri Dilipkumar Amritlal Jani is reduced from Rs. 5,00,00,000/- to Rs. 4,00,00,000/-. Therefore the impugned order against Shri Dilipkumar Amrutlal Jani is modified to the above extent. 9. As regard penalty upon Shri Jagdish M Joshi and Shri Sachin Joshi, we find that no involvement of above persons is on record. We do not find any act committed by both Appellants to evade payment of duty or to violate the Pan masala packaging Rules. Shri Dilipkumar Amrutlal Jani has not named any of these persons to be involved in any act of violation of law nor any of the persons whose statements has been relied upon i.e. production Manager or Supervisors has named the Appellants to be involved in any act of violation. The show cause notice has relied upon the statements of employees Shri Maurya, Shri Manoj Kumar, Shri Sawant, Shri Gehlot, Shri Gautam recorded in relation to some other case booked by the DGCEI against the Appellant Unit to hold both the Appellant‟s responsible for alleged violation in present case. However we find that in the present case no involvement of these Appellants is on record. The Appellant had sought cross examination of the afores....