Cce & St, Lucknow vs M/S K.P. Pan Products Pvt. Ltd

[Arising out of the Order-in-Appeal No. 364-365/CE/LKO/2012 dated 21/08/2012 passed by The Commissioner (Appeals), Central Excise & Service Tax, Lucknow.]

For Approval and signature :

Honble Shri Ashok Jindal, Member (Judicial)

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?

CCE & ST, Lucknow Appellant

Versus

M/s K.P. Pan Products Pvt. Ltd. Respondent

Appearance

Shri R.K. Grover, Authorized Representative (DR)  for the appellant.

Shri Rupesh Kumar, Advocate  for the Respondent.

CORAM: Honble Shri Ashok Jindal, Member (Judicial)

Honble Shri B. Ravichandran, Member (Technical)

Final Order No. 52368/2015 Dated : 29/07/2015

Per. Ashok Jindal :-

Revenue is in appeal.

2. The facts of the case are that the respondent is manufacturer of Pan Masala and Gutkha and paying duty under Pan Masala Packing Machines (Capacity Determination And Collection of Duty) Rules, 2008. During the period May, 2009 to June, 2009, the appellant paid duty as per the said rules but their factory remain closed for 18 days, they filed an abatement claim for the closure period. The abatement claim was allowed but were adjusted against so called demand for uses of their packing machines for manufacturing two types of goods of same MRP, therefore, for the same activity, the respondent is liable to pay duty twice. The respondent challenged the said order of adjusting the demands which was neither raised nor confirmed. The learned Commissioner (Appeals) held that as there is no demand show cause notice issued to the respondent, therefore, adjustment was not correct. Revenues is in appeal against the impugned order, as they are aggrieved by the findings of the learned Commissioner (Appeals).

3. Heard the parties.

4. During the course of arguments, it was asked from learned AR specifically whether any demand notice has been issued to the respondent for short payment of duty for the period May 2009 to June, 2009. The answer of the learned AR is that no notice of demand/show cause notice was issued to the respondent to demand duty for short payment of duty during the impugned period. As there is no notice of demand/show cause notice has been issued to demand the short payment of duty, therefore, question of adjustment of duty by the Adjudicating Authority does not arise. The same view has been taken by the learned Commissioner (Appeals) in the impugned order. Therefore, we do not find any infirmity in the impugned order. The same is upheld. Consequently, the Revenues appeal is dismissed.

(Dictated and pronounced in open court)

(Ashok Jindal)

Member (Judicial)

(B. Ravichandran)

Member (Technical)

PK

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