TMI Blog2017 (5) TMI 1441X X X X Extracts X X X X X X X X Extracts X X X X ..... talled and/or brought inside the factory, and these facts have not been found to be untrue and further corroborated by the supplier of the machines, in his statement u/s 14. The duty demanded from the appellant of ₹ 25 lakhs u/r 9 of the said Rules is not sustainable and further the order of confiscation is also not sustainable - appeal allowed - decided in favor of appellant. - E/329/2011-EX[SM] - FINAL ORDER NO. 70405/2017 - Dated:- 6-1-2017 - Mr. Anil Choudhary, Member (Judicial) Shri S.K. Pandey, Advocate for the Applicant (s) Shri Pawan Kumar Singh, Supdt. (AR) for the Department (s) ORDER Per Mr. Anil Choudhary : The appellant is manufacturer of Pan Masala and Pan Samagri, is in appeal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brand Pan Masala-(MRP ₹ 1) in pouches. 2.1 Further two machines were found in the open premises adjoining the factory (Prangan) on further verification of the machines found, with the declaration, it was evident that Revenue have been informed regarding production from three machines and on the three machines appropriate duty was being paid. But for that two machines found in the open premises of the factory no information was given to the range/division office of Central Excise. On being enquired Mr. R. Tiwari, proprietor stated that these two machines have been received on 25.10.2008 and 26.10.2008 pursuant to purchase. Shri Tiwari showed tax invoice No.13 dated 25.10.2008 and further stating that vide this invoice machine ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch packing machines. On 25.10.2000, vide tax invoice No. 13, book No.1, they have supplied one packing machine to AMP products, Mohanlalganj, Lucknow, proprietor Mr. Raghvendra Tiwari on his oral order over telephone. The machine was supplied and transported by private Auto-rickshaw and they do not have any transport documents for the same and they have paid about ₹ 700/- as transport charges. The pouch packing machine weighs about 250 kg and 4 to 5 persons are needed for loading and unloading of the machine. The value of the machine is ₹ 30,000/-, after adding taxes, value comes to ₹ 33,750/- and they have received full payment of the machine vide cheque No.102241 dated 06th January 2009. On being asked as to for which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior intimation to the Revenue and on other representation dated 14.01.2009 was given reiterating the same plea for release of the machines. 4. Show-cause-notice dated 09.04.2009 was issued on the appellant. It appeared to Revenue that the appellant has filed declaration Form-I regarding number of pouch packing Machines for manufacture of the notified goods under the compounded levy scheme and further they have acquired two more pouch packing machines without declaration to the department. Further, the appellant was required to give at least prior to notice which they have failed to do so and further the appellant was required to pay full duty for the manufacture or October, 2008 for addition of two pouches packing machines for the manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is before this Tribunal. The learned counsel for the appellant have urged that from the facts on record it is evident that the machines were found in the open premises in the factory and/or adjoining premises. He has further stated that the factory premises have a total covered area 60 metres X 90 meter, having a height of 12 feet. There is no open premises or open to sky space in the factory premises, as per the approved map by the Central Excise Authority. He Further points out that the certificate of registration for the same is valid for the premises and purposes specified in the application made by the appellant-assessee. He further points out that it is admitted fact that the said two machines have been found in the open area, which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same shall be deemed to be operating packing machine for the month. Accordingly, it has been concluded by the court below that the contentions of the appellant are not tenable as the two machines were found in the factory, that is substantial evidence for levy of duty. Further adverse inference had been drawn by the authority with reference to Rule 13 requiring advance notice to be given to the authority for addition or subtraction of any machines. He is further contended that under the facts circumstances that the machines had not been brought inside the factory, there was no need to give any information to the Revenue for addition of the machines. Accordingly, he prays for setting aside the impugned order and for release of the machin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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