M/S. Rohit Tobacco Pvt. Ltd vs Cce-Raipur

Date of Order: 17.09.2015

Appeal No. E/55812/2014-EX[SM]

[Arising out of Order-in-Original No. 72/RPR/-II/2014 dated 25.09.2014 passed by Commissioner (Appeals), Central Excise, Customs & Service Tax, Raipur]

For Approval and 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?

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. Rohit Tobacco Pvt. Ltd. Appellant

Vs.

CCE-Raipur Respondent

Appearance: Shri Manish Sharma, Advocate for the appellant.

Shri M.R. Sharma, DR for the respondent.

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

Final Order No. 52936/2015

Per: Sulekha Beevi C.S.

The appellant is aggrieved by the rejection of claim of abatement under Panmasala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008.

2. Brief facts are as follows:

The appellant is engaged in manufacture of Panmasala and was paying duty as provided under Section 3A of Central Excise Act, 1944 read with Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. The appellant wanted to stop production and on 30.08.2013 submitted letter to the Assistant Commissioner, Central Excise Division-I, Bhilai with copy to Jurisdictional Range-Superintendant. The officers visited the factory on 3.9.2013 and the machine was uninstalled and sealed. The appellant paid duty liability of Rs. 14 lakhs on 27.09.2013 along with interest. Subsequently on 22.11.2013, appellant filed application for abatement as provided under Rule 10 of the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008. It is submitted that the factory is closed thereafter and there has been no production. The claim of proportionate abatement of Rs. 12,60,000/- was sanctioned by the adjudicating authority vide order-in-original dated 19.2.2014. Against this, Department filed appeal challenging that the intimation was not given three days prior to the closure/stop of production. The Commissioner (Appeals) allowed the appeal rejecting the claim for abatement. Aggrieved the assessee is before the Tribunal.

3. The only issue that poses for consideration is whether the assessee/appellant has intimated the Assistant Commissioner three days prior to the closure of production. The relevant provision Rule-10 of Pan Masala Machines (Capacity Determination and Collection of Duty) Rules, 2008 is noticed as under:

Rule 10  Abatement in case of non-production of goods.-In case a factory did not produce the notified goods during any continuous period of fifteen days or more, the duty calculated on a proportionate basis shall be abated in respect of such period provided the manufacturer of such goods files an intimation to this effect with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, with a copy to the Superintendent of Central Excise, [at least three working days] prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for the said period under the physical supervision of Superintendent of Central Excise, in the manner that these cannot be operated during the said period;

[Provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and no removal of notified goods shall be effected by the manufacturer except that notified goods already produced before the commencement of said period may be removed within first two days of the said period;]

4. It is submitted by the learned counsel that appellant vide their letter dated 30.08.2013, intimated the Assistant Commissioner, Bhilai with copy to Range Superintendent that the appellant would stop production from 3.9.2013. That the appellants factory being in a remote area, they wanted to ensure timely submission of closure intimation. They submitted the intimation to the Assistant Commissioner, by Fax No. 0788-224Z802 which is official Fax No. of Central Excise Division-I, Bhiali. Appellant also submitted Fax Transaction Report dated 30.08.2013. It is also their case that copy of such intimation dated 30.08.2013 was submitted to Superintendent, Jagdalpur on the same day.

It is the case of Revenue that the intimation reached their office only on 3.09.2013 and has not reached on 30.08.2013. The observation of the Commissioner (Appeals) in the impugned order is as under:

On perusal of the said Fax Transaction Report, it is observed that from the fax report, it cannot be established as to whether under such fax transaction report, the letter regarding intimation of closure of factory w.e.f. 03/09/2013 has been sent by the respondent to the appellant. Also, it is not clear from its status as to whether the same has been transmitted successfully or not, as generally the fax transaction report shows the status of fax to be OK, but in the instant case, in Column Note of said fax transaction report, the word COM. E-6 is found mentioned, which may amount to Error. This has also not been explained by the respondent in their defence submission. There is evidence on relevant file of the rebate claim that the said intimation was received in the Office of the Assistant Commissioner, Central Excise Division-I, Bhilai only on 03/09/2013.

5. In this regard, the observation of the adjudicating authority in order-in-original is as follows:

The assessee vide their letter dated 30.08.2013 addressed to the Assistant Commissioner, Division-I Bhilai and copy endorsed to the Superintendent, Central Excise, Range Rajnandgaon, have intimated that their unit will be closed from 04.09.2013 to 30.09.2013 for due to non selling of the products it has been decided by the management and requested to depute officers for verification and sealing 1 No. of pouch packaging machine (accordingly all the packing machines are sealed) available in their factory premises. The assessee have also filed Form I dated 30.08.2013 in terms of Rule 6. Thus, the assessee have fined an intimation to the closure of production with the Deputy Commissioner of Central Excise, with a copy of the Superintendent of Central Excise, three working days prior to the commencement of said period from 03.09.2013, in terms of Rule 10. The Superintendent Central Excise, Range Jagdalpur has been directed under letter no. IV (16) 05/Misc/Rohit Tobacco/JDP/Bhi-I/2013/3847 dated 30.09.2013 to take necessary action for sealing of o1 pouch packing machines from the midnight of 03.09.2013.

6. The statement of Panchnama dated 3.09.2013 it is stated that according to letter sent on 30.08.2013, the machines were sealed on 3.9.2013. There is no dispute that the Fax No. belongs to the concerned Central Excise office to which intimation has to be sent. When the officers have gone to the premises of the factory on 3.09.2013 itself to seal the machines, they had no case that they had received the intimation only on 3.09.2013 and not on 30.08.2013. Surprisingly, the primary adjudicating authority has categorically held that intimation dated 30.08.2013 was received. Rule 10 does not provide the manner in which the intimation has to be send. The Commissioner (Appeals) has no definite case that the intimation was not received. Looking at the Transaction Report, he assumes that the intimation has not been received as it is not clear from its status as to whether the fax is successfully transmitted or not. These conclusions are merely based on assumptions and presumptions. The Fax report along with statement of Panchnama and the totality of facts establish that appellant has given the intimation on 30.08.2013. When the appellant has given intimation three days prior to the date of closure, the denial of refund/abatement is unjustified. The same has to be allowed.

7. In the result, the impugned order is set aside. The appeal is allowed with consequential relief, if any.

(Sulekha Beevi C.S.)

Member (Judicial)

Ritu