Cce, Delhi-Iii vs M/S. Kuber Tobacco Products Pvt.Ltd

(Arising out of OIA No.09-10/CE/DLH/2015 dt.3.2.2015 passed by the CCE(Appeals), Delhi-I)

Date of Hearing: 30.09.2015

Date of Order: 30.09.2015

For approval & Signature:

Honble Smt.Sulekha Beevi C.S., Member (Judicial)

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3. Whether their Lordships wish to see the fair copy of the order? seen 4. Whether order is to be circulated to the Department Authorities? Yes

CCE, Delhi-III Appellant

Vs.

M/s. Kuber Tobacco Products Pvt.Ltd. Respondent

Appearance:

Present for the Appellant: Ms.Seema Jain, Advocate

Present for the Respondent: Shri M.R.Sharma, AR

Coram: Honble Smt.Sulekha Beevi C.S., Member (Judicial)

Final Order No.53063-53064/2015

Per: Sulekha Beevi C.S.

The above appeals are filed challenging the order which set aside the demand of excise duty along with interest and penalty imposed. The issue involved in the above appeals being same, they were heard together and are disposed by this common order.

2. The respondents are engaged in the manufacture of Zarda pouches and paid excise duty under compounded levy scheme as per the Chewing Tobacco and Un-manufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. The respondents had three FFS machines installed in their factory. In Appeal No.E/52474/2015, the facts are that during the month March, 2013 all the three machines were in sealed condition. There was no manufacturing activity from 1.03.2013 to 20.03.2013. The respondents factory remained closed for continuous period of 20 days. As per the respondents request dated 18.3.2013 one FFS machine was de-sealed on 21.3.2013. The respondent then paid duty on prorata basis (i.e. Rs.5,80,644/- for 11 days from 21.3.2013 to 31.3.2013). One machine was again de-sealed on 31.03.2013 on the respondents request dated 25.03.2013. Similarly, in appeal No.E/52473/2015, the respondent did not carry out manufacturing activity from 1.12.2012 to 15.12.2012 and the respondents factory remained closed for continuous period of 15 days. As per respondents request dated 11.12.2012, one FFS machine was de-sealed on 03.12.2012. The respondent paid excise duty on prorata basis for 16 days (i.e.Rs.6,19,356/- from 16.12.2012 to 31.12.2012). This de-sealed machine was again sealed on 22.12.2012 on the respondents request dated 18.12.2012.

3. According to the department, under the compounded levy scheme, the respondent is liable to pay duty of Rs.12 lakh in a month in advance before 5th day of the said month. But the respondent had paid only Rs.6,19,356/- for 16 days for December, 2012 and Rs.5,80,644/- for 11 days in March, 2013. That there is short payment of duty. A show cause notice raising the above allegation of short payment of duty was issued to the respondent which culminated in the Order-in-Original confirming the demand. The appeal preferred by the assessee was allowed by the Commissioner (Appeals) placing reliance on various judgments of the Tribunal. Aggrieved the Revenue has filed present appeal urging that the department has intention to approach before Honble High Court against the judgement rendered in favour of the assessee. This ground raised by the Revenue is not at all tenable.

4. Learned Counsel for the respondent drew attention to the various judgements as stated below in which similar issue has been decided in favour of the assessee.

1. Shree Flavours Pvt.Ltd. vs .CCE, Delhi-IV-2014 (304) ELT 441 (Tri.-Del.)

2. Kuber Khaini Pvt.Ltd. vs. CCE, Rohtak-Final Order No.54525/2014 dated 20.11.2014

3. Shri Padma Balaji Steel Pvt.Ltd. vs.CCE, Coimbatore-2009 (246) ELT 255 (Tri.-Chennai)

4. Steel Industries of Hindustan vs .CCE, Ghaziabad-2013 (293) ELT 191 (All).

5. It has been held in the above decisions that the assessee is not required to first pay duty for the whole month and then claim abatement and that he is required only to pay duty for the days for which the machines were operated, and held that the assessee is liable to pay interest for the period. The Commissiner (Appeals) has righlty followed the judgement passed by the Tribunal as judicial displiine mandates the same. The Contention of Revenue that they intend to file appeal before the High Court and therefore the principle laid in the above judgements should not be applied is unacceptable. Following the decision in the above judgements, I do not find any merit to interfere in the impugned order.

6. In the result, the appeals filed by the Revenue are dismissed.

(pronounced in the open court on 30.09.2015)

(Sulekha Beevi C.S.)

Member (Judicial)

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