9911796707
TMI Blog2012 (5) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... e Stay Application No.951 and 958 of 2011 respectively. With the consent of the parties, these appeals have been finally heard and are being disposed of. The Commissioner Central Excise issued a show cause notice to the applicants under Section 11-A read with 11-AB and has passed orders on 22.12.2010 confirming the demand of excise duty of Rs.3,91,19,765/- and amount of Rs.8,59,46,469 respectively. The appellant filed appeals against the said order before the Customs Excise Service Tax Appellate Tribunal, in which stay applications have been filed. Stay applications have been disposed of in both the appeals by providing pre deposit of Rs.3,00,00,000/- each in addition to the amount already deposited following was observed in para 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the Superintendent of Central Excise, at least seven 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the respondent contended that rule 10 has to be interpreted in a manner as to permit abatement of duty when the entire production of factory is closed. He submits that in the present case there was no closure of entire production since invoices were issued and goods were released He submits that tribunal has rightly directed to deposit Rs 3,00,00,000/- in each of the appeal, which order is perfectly justified and according to law. In support of his contention Sri Agrawal has placed reliance upon the cases of I.T.C. LTD. Vs. Commissioner (Appeals) Dus.& C. EX., Meerut-I 2005 (184) E.L.T. 347 (All), Central Excise and Customs Appeal No.285 of 2008 M/S Auram Jewellery Export (P) LTD. Gautam Budh Nagar vs. Union of India and others 2009 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Machines (capacity determination & Collection of duty) Rules, 2008 cannot be interpreted from the language used in the Notification No.42/08-CE more so, when in terms of para 2 of the notification No.42/08- CE, the number of packing machines shall be determined in terms of Pan Masala Packing Machines (capacity determination and collection of duty) Rules 2008 and in view of the second proviso to Rule 8, even if an installed packing machine was not working during a month, the same shall be deemed to be operating packing machines during the whole month and accordingly duty I respect of that machines would be charged as if it had been operated during the entire month and not or a fraction of the month for which it was actually operational. We, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are satisfied that there is a prima facie case for consideration before the tribunal. We restrain ourselves in expressing any opinion on merits, which may have effect on the decision of the appeal. Ends of justice he served in directing the appellant to deposit an amount of Rs.2 crores each as pre-deposit and any deposit made by the appellant in pursuance of the demand in question as directed by the order of the Commissioner Central Excise dated 24.12.2010 shall be adjusted in the pre deposit to be made under the order of the tribunal. The order of the tribunal dated 09.02.2012 is modified to the above extent. The appellant is allowed three weeks' time to make pre- deposit as directed above. Both the appeals are disposed of accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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