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TMI Blog2014 (4) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... hap ' falling under chapter 24 of Central Excise Tariff Act, 1985. Shri Rajesh Goyal is one of the director of manufacturing unit. The manufacturing activities are being conducted from the premises located at B-21, Krishnapuri, Old Ramgarh Mod, Jaipur. Another proprietory unit in the name and style of M/s. Rajesh Tobacco Co. engaged in the trading of the tobacco products and having their godown for the purpose of storing their goods at the rented premises at 269, Govind Nagar East, Jaipur. 3. The premises of the appellants' company were visited by the central excise officers on 18.1.2011 who conducted various checks and verifications. They also visited the rented godown of M/s. Rajesh Tobacco Co. situated at 269, Govind Nagar East, Old Ramgarh Mod, Jaipur and found certain goods of ' Laxmi Chhap ' brand were lying. In addition, the officers also found three packing machines from the said premises. 4. It is seen that the appellants during the course of investigation submitted before the Revenue that 3 pouch packing machines seized from the premises at 269, Govind Nagar East, Old Ramgarh Mod, Jaipur were there as obsolete and scrapped in not working condition machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comparative study of the photographs of the machines and panchnama dated 18.1.2011, it is interesting to note that the machine which was alleged to be found plugged-in does not have motor in it, thus any argument that this particular machine was in working condition on 18.1.2011 is also too specious as it cannot be explained as to why a machine claimed to be scrapped should be plugged into the electric socket. Obviously it was a condition that motor could be attached anytime to run this machine. However, it may be mentioned that it would be rather too much to suggest that photographs and physical status of the seized machines can prove that the machines were out of order from 8.3.2010. Thus photographs and physical status can be indicative of condition of machines at a given time i.e. to say on 18.1.2011, but cannot provide absolute evidence that they were out of order even since 8.3.2010. Moreover the missing parts of the machines can always be attached to the machines to make the same operational as it does not require substantial engineering skills especially in machine No.3 where even the lights were found glowing and motor was only missing." 6. After observing so, he held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is can never be the case. It is installation of the packing machine in the factory engaged in the manufacture of chewing tobacco, which is relevant. 8. Admittedly, 3 packing machines were found from the premises at 269, Govind Nagar East, Old Ramgarh Mod, Jaipur, which was neither a factory nor registered premises and machine were in non-working condition and were found to be in dumped condition. As such, the deeming fiction in respect of packing machine in terms of provisions of Chewing Tobacco and Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010 arrived at by the adjudicating authority for confirming of demand against the appellant cannot be prima facie appreciated. We accordingly hold that the appellant has good prima facie case in their favour so as to allow all stay petitions unconditionally. We order accordingly. PER MANMOHAN SINGH Member (T) 9. I have gone through the draft order recorded by the learned Member (Judicial) in respect of above appellant and director of the company, Shri Rajesh Goyal. Based on para 99 of Order-in-Original, learned Member (J) held that premises from where 3 packing machine were recovered, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uire substantial engineering skills especially in machine No.3 where even the lights were found glowing and motor was only missing." 12. Appellants have tried to submit that machines were old and obsolete and were lying in dumped condition. They have also tried to divert the main issue by putting the blame on visiting team that no condition of the machines was described in the Panchnama. They also made reference to other manufacturing unit in the name and style of M/s Rajesh Tobacco Co. engaged in trading the tobacco products at the 269, Gobind Nagar, East Jaipur. 13. On perusal of above para as well as pleas of the appellants it is evident from Commissioner's observation that machine found plugged-in did not have motor in it. He also observed that as to why, a machine claimed to be scrap should be plugged into the electric socket. He also on perusal of photographs and physical status of the seized machines discarded this plea and held that it could not be proved that the machines were out of order from 8.3.2010. Commissioner also observed that the missing parts of the machines could always be attached to the machines to make the same operational as it did not require substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y working of the company. 18. Statement of shri Harish Chandra, Accountant was also recorded wherein he also confirmed the fact admitted by Rajesh Goyal and also confirmed that the machines were working in the hall and were manufacturing unmanufactured tobacco of 'Laxmi Chhap' brand. 19. On further being questioned, Shri Rajesh Goyal stated that under Rule 6 (5) of Chewing Tobacco & Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules 2010, it was provided that which packing machine was not in use could be sealed by the departmental seal but in this matter he did not give any information to the Central Excise department regarding said 3 machines nor he got the premises at 269, Govind Nagar east, Jaipur registered for unmanufactured tobacco pouch packing activity. All the three machines installed in above premises were in his knowledge. 20. The statement of Shri Harish Chandra son of Shri Moola Ram indicated that he used to sit in the premises situated at 324, Tripolia Bazar which was not a registered office of the firm but was being used as firm's office. In answer to question No. 9 he had stated that he was aware about the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Sufficient evidence has come on record enforcing that duty was clearly demandable under Chewing Tobacco & Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010. 24. In view of these evidences, ld.Member (J) observation that the machines were in dumped condition, Chewing Tobacco and unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rues, 2010 are not attracted and no duty was demandable and finding that the machines were installed in the unregistered premises are not acceptable. That fact of production on these FFS machines in unregistered premises was admitted by Shri Rajesh Goyal, Director. 25. In view of clear facts and various statements recorded by the Revenue, it clearly comes out that M/s Goyal Tobacco Company was in the knowledge of all affairs of tobacco manufacturing. They have possessed FFS machines but later they shifted because compounded levy was imposed on these machines making evasion difficult. They also knew about rules Chewing Tobacco & Unmanufactured Tobacco Packing Machine (Capacity Determination and Collection of Duty) Rules, 2010 and were aware that whatever machines which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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