DINESH TOBACCO INDUSTRIES Vs. C.C.E. & S.T. JAIPUR-II
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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Ashok Jindal, Member (J) -
(1.)THE appellant is in appeal against the impugned order wherein the Ld. Commissioner has directed to pay duty as per ACDO. The facts of the case are that the appellant are manufacturing Sada Pan Masala as well as Zarda and they are being governed by Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules 2008 and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules 2010. As per their annual capacity it was worked out that appellant is required to pay Rs. 66 Lakhs as duty per month. The packing machines were remained sealed during the period 25.07.2012 to 21.08.2012 and machine started working on 22.08.2012. As per the Rule 10 of the said rules the appellant is required to pay duty determined as per their annual capacity by 5th day of the month. The appellant did not pay the duty on 5th day of that month. As their unit was closed they paid the duty for the period 22.08.2012 to 31.08.2012 on 24.08.2012 proportionately i.e. Rs. 20,32,258/ -. Later on duty was demanded for the balance amount of Rs. 63 lakhs less Rs. 20,32,258/ - as appellant has not paid duty for whole of the month on 5th day of the said month. Against the said order the appellant made a representation before the Ld. Commissioner on 12.03.2013 and on 14.03.2014, the representation made by the appellant was considered and it was directed by the Ld. Commissioner to pay duty as per ACDO. Aggrieved from the said order appellant is before me.
(2.)LD . AR took the preliminary objection that against this order appeal is not maintainable before this Tribunal as it is not an appealable order. She drew my attention to the various provisions of the Central Excise Act and submits that appeal is lying before this Tribunal against an order passed by the Adjudicating Authority and in this case Adjudicating Authority is Deputy Commissioner who has passed the order for demanding duty and against the said order appeal lies with Commissioner (A) not before this Tribunal. Therefore, this appeal be dismissed as non maintainable. She further submits on merits as per rule 10 of the said rules, the appellant is required to pay duty for whole of the month by 5th day of the said month and if at all their claim of abatement that has to be considered by the Adjudicating Authority, if they are entitled, they will get refund of the same.
On the other hand Ld. Counsel for the appellant submits that as in this order the Ld. Commissioner has considered merits of the case and there after has directed to pay duty, therefore, the said order is appealable in the light of the decision of the Hon'ble High Court of Delhi in the case of Candex Chemical Fibres Co. (P) Ltd. v. C.C. reported in : 2014 (310) E.L.T. 500 (Del). He further submits that on merits their case is squarely governed by the decision of this Tribunal in the case of Shree Flavours Pvt. Ltd. v. C.C.E. Delhi vide order No. A/50958/14 -EX(DB) dated 07.03.2014.
(3.)HEARD the parties. Considered the submission.
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