SATYA PRAKASH AND CO. Vs. CCE
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Satya Prakash And Co.
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Ashok Jindal, Member (J) -
(1.)THE appellant is in appeal against the impugned order rejecting the rebate claim of Rs. 7,12,500/ - by the lower authorities.
(2.)THE brief facts of the case are that the appellant is engaged in the manufacture of Branded Chewing Tobacco notified under section 3A(1) of Central Excise Act, 1944 and falling under Chapter Heading No. 24039910 of Central Excise Tariff Act, 1985. During the course of scrutiny of Rorm -2 (revised) for the month of September, 2011 filed by the appellant under Rule 9 of Chewing Tobacco and unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, it was observed that the appellant had packed manufactured branded chewing tobacco with the help of 2 packing machines during the said period. In accordance with Rule 6(4) read with Rule 8 of Packing Machine Rules, 2010, there were 2 operating packing machines installed in the factory premises of the appellant during the month. The Central Excise duty as prescribed vide Notification No. dated 27.2.2010 as amended by vide Notification No. dated 13.4.2010, was required to be calculated by the appellant under Rule 7 of the Packing Machine Rules, 2010 and the same was required to be paid by 5th day of the same month (for machine operating for 1st day of the month) under Rule 9 ibid. However, it was noticed that:
(i) One single tract (without lime) packing machine for packing pouches of RSP (retail sale price) of Rs. 2.00 (hereinafter called as First Machine) was operative for the period 1.9.2011 to 30.9.2011 and duty of Rs. 14,25,000/ - was deposited by the appellant vide GAR -7 No. 0239 dated 3.9.2011, within the prescribed due date.
(ii) One single tract (without lime) packing machine for packing pouches of RSP of Rs. 2.00 (hereinafter called as Second Machine) was operative for the period 16.9.2011 to 30.9.2011 and duty of Rs. 14,25,00/ - was deposited by the appellant vide GAR -7 No. 02029 dated 4.10.2011, within the prescribed due date.
Subsequently, the appellant filed abatement claim for Rs. 7,12,500/ - on pro -rata basis, before the Assistant Commissioner, Central Excise Division, Farrukhabad, vide their letter dated 12.10.2011 for the period from 1.9.11 to 15.9.11 in respect of the non operative period of second machine.
(3.)THE Adjudicating authority observed that the provisions of Rule 10 of Packing Machine Rules, 2010 are applicable in the case of the appellant. Since the appellant has produced/removed the notified goods with one single tract (without lime) packing machine (First Machine) for packing pouches of RSP of Rs. 2.00 was operative for the period 1.9.2011 to 30.9.2011, therefore, the abatement claim for Rs. 7,12,500/ - for non -operation of second machine during 1.9.11 to 15.9.11 was not admissible as Appellant has not fulfilled the condition of completely stopping the manufacturing activity, because their machine remained operative during the said period. Accordingly, a show cause notice dated 14.12.11 was issued to the appellant as to why their abatement claim of Rs. 7,12,500/ - which was not in agreement with provisions of the relevant rules should not be rejected. Subsequently, vide the impugned Order -in -Original, the claim of abatement of duty of the appellant was rejected.
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