Custom, Excise & Service Tax Tribunal
M/S Shree Flavours Llp vs Cce, Delhi Ii on 3 May, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. II DATE OF HEARING : 03/05/2016. DATE OF DECISION : 03/05/2016. Excise Appeal Nos. 50242-50243 of 2016 (SM) [Arising out of the Order-in-Original No. 17/2015-16 dated 17/12/2015 and No. 15/2015-16 dated 27/11/2015 both passed by The Commissioner, Central Excise, New Delhi.] For Approval and signature : Honble Shri B. Ravichandran, 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 would 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 : Department Authorities? M/s Shree Flavours LLP Appellant Versus CCE, Delhi II Respondent
Appearance Shri Ashwani Sharma, Advocate for the appellant.
Shri M.P. Sharma, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51732-51733/2016 Dated : 03/05/2016 Per. B. Ravichandran :-
These two appeals dealing with the identical issues by the same appellant are taken up together for disposal. The issue in brief is that the appellants are engaged n the manufacture of Chewing Tobacco liable to excise duty. They are working under a scheme in terms of Chewing Tobacco and Un-manufactured Tobacco Packing Machines [Capacity Determination and Collection of Duty] Rules, 2010. The period covered is May 2013 to March 2014 in appeal No. E/50242/2016 and April 2014 to December 2014 in appeal No. E/50243/2016. During each of this month, the appellant operated their pouch packing machine in the last week of the said month. They have calculated the duty liability in terms of the said Rules and paid the duty before end of the said month itself. Proceedings were initiated against them to demand duty for the full month alongwith interest alongwith proposal to impose penalty. The cases were adjudicated resulting in impugned orders. The Original Authority dropped the demand of duty in both the cases. However, he confirmed the liability to interest for the period from 6th of the month upto date of payment. In one case he also imposed penalty of Rs. 1,00,000/- on the appellant.
2. The learned Counsel for the appellant stated that in terms of the above Rules they have to pay duty by the 5th of every month in respect of liability for the said month. In other words, they have to discharge duty liability in advance. However, in the facts of the present case during the period to pay Central Excise duty i.e. 1st to 5th of any month, they were not having any machine in operation as they are sealed with due intimation. As such no duty, in advance, could be discharged. After intimation to the Department, during the last week of every month, the machines were put to operations and duty as applicable was paid immediately before the end of the month itself. The learned Counsel pleaded that their case is covered by 3rd proviso to Rule 9. Rule 7 could not be applied as they could not determine the number of operating packing machine which may work on a future date. The learned Counsel submitted that similar types of cases have been examined by the Tribunal. It was held in Trimurti Fragrance Private Limited vs. CCE, Delhi II vide final order No. 53520/2015 SM (BR) dated 24/11/2015 and in CCE, Delhi II vs. Vasundhara Flavours vide final order No. 50144-50145/2016 SM (BR) dated 25/01/2016, that no duty demand or interest could be made on the appellant in similar situations. The Tribunal applied the provisions of the 3rd proviso to Rule 9 and reading it together with the other applicable provisions of the said Rules, came to conclusion that there is no delayed payment warranting levy of interest in such situation. Following the ratio of the above decisions, I find merit in these appeals and accordingly the appeals are allowed.
(Order dictated and pronounced in the open court.) (B. Ravichandran) Member (Technical) PK ??
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