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M/S.Maa Vindhya Vasini Tobacco Pvt. Ltd vs Cce, Kanpur

Customs Excise and Service Tax Appellate Tribunal17 April 2015

Ratio decidendi

The rule this decision rests on

The impugned duty demand, which treated each packing machine as two machines because the same machine was used during part of a month to manufacture a second retail sale price variant, cannot stand where the same issue has been decided in the assessee's favour by a coordinate Bench in a comparable case; the order is therefore set aside on the basis of that earlier decision, applied without independent reasoning on the merits of the first proviso to Rule 8 of the PMPM Rules.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.BENCH-DBCOURT-IIIExcise Misc. Application No.E/M/50521/2015 inExcise Appeal No.E/59991/2013-EX[DB]

[Arising out of Order-in-Original No.KNP-EXCUS-COM-006-13-14 dated 25/07/2013 passed by the Commissioner, Central Excise & Service Tax, Kanpur]

For approval and signature:

HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)

HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)

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.Maa Vindhya Vasini Tobacco Pvt. Ltd. Appellant

Vs.

CCE, Kanpur  Respondent

Present for the Appellant : Shri.Hrishikesh Jha, Advocate

Present for the Respondent: Shri.Yashpal Sharma, DR

Coram:HONBLE MR. RAKESH KUMAR, MEMBER (TECHNICAL)

HONBLE MR.S.K. MOHANTY, MEMBER (JUDICIAL)

Date of Hearing/Decision: 17/04/2015

FINAL ORDER NO. 51413/2015

PER: RAKESH KUMAR

The facts leading to filing of this appeal are in brief as under.

2. The appellant are manufacturers of Pan masala and Gutkha under a brand-name Madhu, Madhu Extra Power, Madhu 2000 and Madhu Pan masala. The appellant were discharging duty liability on the Gutkha and pan masala manufactured by them in accordance with Pan masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 (hereinafter referred to as PMPM Rules). The dispute is in respect of the months of August, 2008, October, 2008, February, 2009, June, 2009, August, 2009 and September, 2009. During these months the appellant in addition to manufacturing Gutkha / pan masala pouches of retail sale price of Rs.1, also used the same machines during part of the month for manufacture of Gutkha/ pan masala pouches of the retail sale price of Rs.0.50 piece per pouch. The Department invoking the first proviso to Rule 8 of the PMPM Rules has treated each machine as 2 packing machines and has demanded duty on this basis. In this regard, according to the proviso to rule 8 in case a manufacture commences Manufacturing of a new RSP during a month on an existing machine, it shall be deemed to be an addition in the number of operating packing machines for the month.

It is on this basis that the Commissioner by the impugned order in original dated 25.07.2013 has confirmed duty demand of Rs.9,12,50,000/- against the appellant alongwith interest on it under section 11AB and has imposed penalty of the equal amount on them under Rule 17 of the PMPM Rules read with Rule 25 of the Central Excise Rules, 2002. Against this order of the Commissioner, this appeal has been filed. Initially, the Tribunal vide stay order No.52404/2014 dated 14.07.2014 had granted unconditional waiver from the requirement of pre-deposit following the Tribunals judgment in the case of Phool Chand Sales Corporation vs. Commr. of C. Ex., Lucknow reported in 2012 (279) ELT 270 (Tri.- Del.). Since in this case the Tribunal had granted unconditional stay till the disposal of the appeal, the department filed an appeal against this stay order before Honble Allahabad High Court under Section 35 G of the Central Excise Act, 1944 on the ground that after insertion of sub-section (2A) of Section 35 C the Tribunal has no powers to grant stay beyond 365 days. This appeal was disposed of by Honble High Court vide Order dated 10.02.2015 by which the Honble High Court observing that without going into the controversy, it is of the opinion that the appeal of the respondent should be disposed of by the Tribunal within a stipulated period, and accordingly directed the Tribunal to dispose of the appeal within a period of 6 months from the date of production of certified copies of this order.

Accordingly, this appeal has been taken up for hearing.

3. Heard both the sides.

4. Both the sides agree that the issue involved in this case stands decided in favour of the appellant by the Tribunal judgment in the case of Trimurti Fragrance Pvt. Ltd. vs. CCE, Kanpur (Final Order No.50719/2015-EX(DB) dated 18.03.2015). In view of this, following above judgment of the Tribunal, the impugned order is set aside and the appeal is allowed.

[Dictated & Pronounced in the open Court].

(S.K.MOHANTY) (RAKESH KUMAR)

MEMBER (JUDICIAL) MEMBER (TECHNICAL)

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