Custom, Excise & Service Tax Tribunal
Dharampal Satyapal Ltd vs Shillong on 19 July, 2024
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
KOLKATA
REGIONAL BENCH - COURT NO.2
Excise Appeal No. 75452 of 2015
(Arising out of Order-in-Appeal No. 21/SH/CE(A)GHY/2015 dated 26.02.2015 passed
by Commissioner (Appeal), Customs, Central Excise & Service Tax, Guwahati.)
M/s Dharampal Satyapal Ltd.,
(14, Arundhuntinagar, Industrual Estate, Agartala-799003 Tripura.
...Appellant
VERSUS
Commissioner of CGST & Central Excise, Shillong,
(Morello Compound, M.G. Road, Shillong-793001.)
.. ...Respondent
APPERANCE :
Shri Tayant Kumar, Advocate for the Appellant Shri P. K. Ghosh, Authorized Representative for the Respondent CORAM:
HON'BLE MR. R. MURALIDHAR, MEMBER (JUDICIAL) HON'BLE MR. RAJEEV TANDON, MEMBER (TECHNICAL) FINAL ORDER No. 76468/2024 DATE OF HEARING : 19.07.2024 DATE OF DECISION : 19.07.2024 PER R. Muralidhar :
Briefly stated the facts of the case are that the appellants are engaged in the manufacture of Zarda, Scented Tobacco classifiable under Chapter 24 of the Central Excise Tariff Act, 1985. They are paying duty under Section 3A of the Central Excise Act, 1944 read with chewing tobacco and unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010. The appellant claimed the abatement of duty of Rs.64,00,000/- for non- production of the notified goods during the period 15.06.2012 to 30.06.2012. The Adjudicating Authority rejected the Refund/Abatement claim which was submitted on 19.09.2016 as per Rule 10 of the Rues, 2010. By the impugned order, the Commissioner (Appeals) upheld the Adjudicating Order. Being aggrieved, the appellant is before the Tribunal.
2. Heard both sides and perused the appeal records.
2Excise Appeal No. 75452 of 2015
3. It is seen that the appellant submitted the intimation for non- production of the notified goods on 14.06.2012 requesting sealing of machine with effect from 15.06.2012 on the same night of 14.06.2012 at 23:59 hrs. The Rule 10 of the said Rules, 2010 provides that in case a Factory did not produce the notified goods during continuous period of 15 days or more, the assessee shall file intimation to this effect with the Deputy Commissioner of Central Excise, or the Assistant Commissioner of Central Excise with a copy to the Superintendent of Central Excise at least three working days prior to the commencement of the said period. In the present case, admittedly the appellant had not filed the intimation before three working days prior to the commencement of the said period. The contention of the Learned Counsel that the Superintendent of Central Excise sealed the machine on 14.06.2012 at 23:59 hrs., and therefore it is a procedural lapse and abatement cannot be denied. The Learned Counsel relied upon the decision of the Tribunal in their own case decided vide Final Order No. F.O./78622/2017 dated on 11.12.2017 identical issue. He also relies on Rajat Industries Private Limited Vs. Commissioner of Central Excise & Service Tax, Kanpur 2015 (320) ELT 146 (Tri.-Del.). He also relied upon the decision of the Tribunal in the case of Commissioner of Central Excise, Chandigarh-II Vs. M/s Tezram Dharampal 2016 SCC Online CESTAT 5254.
4. In the case of Rajat Industries Private Limited (Supra) the Tribunal held that the fact of giving order for Sealing machine is not disputed and therefore prayer of abatement of duty cannot be denied. The relevant portion of the said decision is reproduced below:-
"6. We have considered that submissions from both the sides and perused the records. Rule 10 of PMPM Rules, 2008 provides that in case a factory manufacturing Pan Masala or Gutkha, did not produce any goods during any continuous period or 15 days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of the said goods files an intimation to this effect with the Deputy/Assistant Commissioner with a copy to the Superintendent of Central Excise atleast three working days prior to commencement of the said period, who, on receipt of the such intimation, shall direct for sealing of all packing machines available in 3 Excise Appeal No. 75452 of 2015 the factory for the said period under physical supervision of the Superintendent of Central Excise in the manner that these machines cannot be operated during the said period. Thus, for claiming abatement of the period during which a Pan Masala/Gutkha Manufacturing unit was totally closed, the conditions prescribed in this Rule are that the closure must be for 15 days or more and at least three working days prior to commencement of closure intimation should be given to the jurisdictional officers and, thereafter, the jurisdictional officers should seal these machines in such a manner that the same cannot be operated during the said period. In our view, the purpose of 3 working day's intimation to the department is to enable the departmental officers to have sufficient time for effective sealing of all the machines in such a manner that the same cannot be operated during the period of the closure. In this case the application of intimation for closure from 15-1-2013 was given on the 10-1-2013 and was received in the office of Assistant Commissioner as well as Superintendent on same day. There is no dispute that on 11-1-2013, which was a holiday, the Assistant Commissioner gave the orders for sealing of the machines. This is clear from the first paragraph of the punchnama of the sealing. There is also no dispute that the sealing as per the requirement of Rule was done on 14-1-2013 at 23:32 hours and after completion of the period of the closure, the machines were desealed at 10:10 Hours on 1-2-2013. The only objection of the department is that the intimation for closure was not given three working days prior to commencement of the period of closure. We are of the view that when the purpose of giving prior intimation three working days prior to commencement of closure, is that the officers have enough time to seal the machines in the manner as prescribed in this rule, and this purpose has been achieved, as the sealing of the machines in the manner prescribed was done on 14-1- 2013 in pursuance of the orders given by the Assistant Commissioner on 11-1-2013, the Conditions of the intimation of closure being given at least three working days' prior to closure lose its significance and the benefit of abatement cannot be denied on the ground that intimation of less than three working days' prior to closure. Just because of this technical requirement this substantive benefit in terms of the Rule 10 of the abatement of duty for the closure cannot be denied. We, therefore, hold that the impugned order is not correct. The same is set aside. The appeal as well as stay application is allowed. The miscellaneous application also stands disposed of as above."4
Excise Appeal No. 75452 of 2015
5. In the present case, we find that the Superintendent of Central Excise uninstalled and sealed the FFS machine on 14.06.2012 at 23:59 hrs. There was no production of notified goods in their factory premises from 15.06.2012 to 30.06.2012. The cited case laws are squarely applicable in this case. Hence, we do not find any reason to deny the benefit of abatement. Accordingly, the impugned order is set aside.
6. The appeal filed by the appellant is allowed with consequential relief, if any as per law.
(Dictated and pronounced in the open court) Sd/-
(R. Muralidhar) Member (Judicial) Sd/-
(Rajeev Tandon) Member (Technical) Tushar Kr.