Custom, Excise & Service Tax Tribunal
M/S Trimurti Fragrance Pvt. Ltd vs C.C.E. Delhi- Ii on 21 January, 2015
CUSTOMS, EXCISE & SERVICE TAX, APPELLATE
TRIBUNAL, NEW DELHI, PRINCIPAL BENCH,
COURT NO. III
BENCH-DB
Appeal No. E/53405-53407/2014
[Arising out of Order-In-Original No. 23/2014-15 dated: 21.03.2014 passed by Commissioner Central Excise, Delhi-II]
Appeal No. E/53645-53647/2014
[Arising out of Order-In-Original No. 27/2014-15 dated: 31.03.2014 passed by Commissioner Central Excise, Delhi-II]
Appeal No. E/53839, 53840, 53883/2014
[Arising out of Order-In-Original No. 01/2014-15 dated: 07.04.2014 passed by Commissioner Central Excise, Delhi-II]
Appeal No. E/53886/2014
[Arising out of Order-In-Original No. 95/CE/COMMR/DM/RTK/2013-14 dated: 31.03.2014 passed by Commissioner Central Excise, Rohtak]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Hon'ble Mr. Rakesh Kumar, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s Trimurti Fragrance Pvt. Ltd. Appellants
Roshan Aggarwal, Director
Pradeep Kumar Aggarwal, Director
M/s Trimurti Fragrance Pvt. Ltd.
Pradeep Kumar Aggarwal, Director
Roshan Aggarwal, Director
Raj Products
Raj Products
Vs.
C.C.E. Delhi- II Respondent
AND Kays Fragrance Pvt. Ltd. Unit-II Appellants Kays Fragrance Pvt. Ltd. Unit-I Vs. C.C.E. & ST Rohtak ...Respondent Appearance:
Mrs. Seema Jain, Mr. Ashwani Sharma & Mr. B.L. Narsimhan, Advocates for the Appellants Mr. R.K. Grover, AR for the Respondent CORAM:
Hon'ble Mr. Rakesh Kumar, Member (Technical) Hon'ble Mr. S.K. Mohanty, Member (Judicial) Date of Hearing /decision:21.01.2015 Final ORDER NO. 50223-50232 /2015 Per Rakesh Kumar (for the Bench):
Since the facts and the issue involved in these cases are identical, the same were heard together and are being disposed of by a common order.
2. The appellants, namely, M/s Trimurti Fragrance Pvt. Ltd. whose Directors are Shri Pradeep Kumar Aggarwal and Shri Roshan Aggarwal, M/s Raj Products and M/s Kays Fragrance Pvt. Ltd., (Unit-I & Unit-II) are manufacturers of Gutkha, Pan Masala and Chewing Tobacco. In all these cases the appellants were discharged their duty liability in terms of Pan Masala Packing Machine (Capacity Determination and Collection of Duty Rules, 2008) (hereinafter referred to as PMPM Rules) and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty Rules 2010)(hereinafter referred to as CTUTPM Rules). Both these Rules required an assessee to discharging duty liability in respect of the Gutkha, Pan Masala/ Chewing Tobacco manufactured and cleared in a month, in advance by 5th of that month. In all these case, the factories of the assesses were closed during certain months for 15 days or more continuously and were eligible for rebate in terms of Rule 10 of the PMPM Rules and Rule 10 of the CTUTPM Rules. There is no dispute that for the period of closure, the assessee would be entitled for abatement. The only point of dispute is as to whether the appellant must have, first paid, the duty due for the whole month by the due date and then must have claimed abatement or whether the appellant are required to pay only the net amount of duty payable after adjusting the abatement. The Department being of the view that the appellant must have first paid the duty by the due date for the month and then should have claimed the abatement, issued Show Cause Notice for demand of duty for the whole month, as if, during the entire months, all the declared machines were functioning. The appellants, however, have paid duty after adjusting the abatement only for the days for which the machines were operating. It is on this basis that the commissioners by the impugned orders have confirmed duty demands against the appellant along with interest and have also imposed penalties on the appellants companies under Rule 17 of the PMPM Rules read with Section 11AC and Rule 19 of the CTUTPM Rules, read with section 11AC. Beside this, in case of M/s. Trimurti Fragrance Pvt Ltd., penalty has also been imposed on Shri Roshan Aggarwal and Shri Pradeep Kumar Aggarwal the Directors of the appellant company. Against these orders of the Commissioners, these appeals have been filed.
3. Heard both the sides.
4. Both the sides agree that issue involved in these cases is stand decided in favour of the Appellants by the Tribunals judgments in the cases of Shri Flavours Pvt Ltd vs CCE Delhi-IV reported in 2014 (304) ELT 441, Kuber Khaini P. Ltd. vs CCE Rohtak (Final Order No. 54525/2014 dated 20/11/2014), Shri Padma Balaji Steel Pvt. Ltd. vs CCE Coimbatore reported in 2009 (246) ELT 255 (Tri Chennai), wherein it has been held that in such cases the assessee is not required to just pay the duty for the whole month and then claim the abatement and that he is required to pay only the duty for the days for which the machines were operating and only the interest for the period from the due date to the date on which the adjusted duty chargeable was paid would be leviable. We find that the same view has also been taken by Honble Allahabad High Court in the case of Steel Industries of Hindustan vs CCE Gahziabad reported in 2013 (293) ELT-191 All, wherein Honble High Court held that for claiming the abatement for the closure period, depositing the duty for the whole month was not a pre-condition under Rule 962B of the Central Excise Rules, 1944. We are of the view that the ratio of these judgments is also squarely applicable to the facts of these cases. Accordingly, the impugned orders are set aside except to the extent that the appellants be liable to pay interest for the period of delay in payment of the adjusted duty from the due date. The appeals stands disposed of as above.
(Dictated and pronounced in open court)
(Rakesh Kumar) (S.K. Mohanty)
Member(Technical) Member(Judicial)
Neha
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