TaxTMI 
TaxTMI 
2024 (2) TMI 814
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..... I, however, in the facts and circumstances of the case do not propose to impose any penalty." 2.1 Appellant is a manufacturer of Pan Masala containing tobacco called 'Gutkha' under the brand name of 'Gomti' classifiable under sub-heading No.24039990 of first schedule to Central Excise Tariff Act, 1985 of the Retail Sale Price of Rs.1.00 per Pouch. W.e.f. 01.07.2008 appellant has been discharging the duty on the compounding basis as per the provisions of Pan Masala Packing Machines (Determination of Capacity and Collection of Duty) Rules, 2008 as per the goods prescribed under Notification No.41/2008-CE dated 01.07.2008. 2.2 Appellant filed a declaration on 10.07.2008 in Form-I showing 6 (5+1) packing machines were operational during the month of July, 2008 and that the appellant was manufacturing Gutkha and sweet supari. Clearly showing that one pouch packing machine was kept separately in another room, while 5 packing machines for packing of Gutkha were kept in another room of the factory. 2.3 The Deputy Commissioner, Central Excise Division-I Lucknow determined that 9 machines were shown to be available and installed in the factory under the compounded levy scheme. 2.4....
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....that as per the declaration they have sated in respect of the machine installed in separate room as per the ground plan that the same will be used for packing of sweet supari. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For holding against the appellant, Commissioner has observed as follows:- "As already observed hereinbefore, for the purpose of computation of duty liability for the month of July 08, only the operative packing machines which were unsealed and engaged in manufacturing process are relevant. Therefore the basic issue that needs to be addressed in these proceedings is to find out the actual number of installed and operating packing machines during the month of July 08. For ascertaining this, I have carefully gone through various sealing request letters given by the Noticee in respect of sealing/unsealing of machines in their factory from time to time and the sealing/unsealing reports given on the face of such request letters he copies of these reports were submitted by the Noticee in their defence reply. These have been got crosschecked from the jurisdictional authoriti....
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....1. Since the Noticee have not produced any evidence showing that 'Sweet Supari' machine was stored separately or kept in a segregated place nor their ground plan has any clue about this fact, in this situation, I have no other option but to treat this machine as an operating packing machine for July 2008. As regards, the machine said to have been exclusively allotted for Zarda packing, a report dated 01.10.2007 of the concerned Inspector has been forwarded by the Noticee in their reply which says that the said machine was sealed on 01.10.2007. This has also been confirmed by the jurisdictional Range Officer vide letter dated 23.12. 10 that the said Zarda machine remained sealed all the time after 01 10 2007. In view of the above factual analysis, it now becomes clear that on 1st & 2nd of July 2008, the total number of operating packing machines were six (5 + 1) This is the same number of machine which the Noticee intended to operate in their Form-1, declaration and which they continued to operate even after 10.07.2008 There is no evidence on record to show that 9 machines or any number of machines in excess of 6 were operational on any day during July'....
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....hine is used for packing sweet supari was installed in the separate room. They had filed a declaration along with form-1 enclosed the ground plan, which is reproduced bellow:- 4.4 Commissioner in the impugned order no discussion has been made about the ground plan which clearly shows that one separate machine has been installed in a separate room and other five operational pouch packing machines used for packing Gutkha. It is also evident that on 03.07.2008 officers has sealed 5 machines and unsealed five pouch packing machines on 07.07.2008, as is evident from the remark affixed on the letter dated 30.06.2008, which is reproduced bellow:- 4.5 Further in their declaration, they have stated that out of six machines available in their premises 5 were being used for packing of Gutkha and one was used for packing sweet supari. No findings has been rendered by the Commissioner taking into account the ground plan and the form-I filed by the appellant during the relevant time. The whole dispute is in respect of one pouch packing machine that was installed in separate room as per the ground plan and used for packing sweet supari. We find that no evidence has been produced by the reve....