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M/s Dharampal Satyapal Limited Versus Union of India, The Superintendent (HQRS. Anti Evasion-I) , The Assistant Commissioner (Anti Evasion)

Rule 6(2) of the Pan Masala Packing Machines (Capacity Determination and Calculation of Duty) Rules, 2008 - packing speed of machines - The petitioner Company had declared the speed at 750 pouches per minute even when speed was not relevant for duty purpose, and had subsequently changed it to 1000 pouches per minute, when packing speed of the machine was relevant, and continued to declare it as such till such time the Company started getting complaints about the packing of the pouches. - Hel .....

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er concerning the annual capacity of production of the factory within 3(three) working days. The second proviso to Sub-rule 6(2) provides that if a manufacturer does not receive the approval in respect of his declaration within a period of 5(five) working days, the approval shall be deemed to have been granted subject to the modifications, if any, which the Deputy Commissioner or the Assistant Commissioner of Central Excise, as the case may be, may communicate later on but not later than 30(thir .....

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ication of the machine to determine the maximum packing speed at which it could be operated. The aforesaid order was set aside by the Commissioner (Appeals) vide his order dated 30.08.2016 on an appeal preferred by the petitioner. - It is not in dispute that the petitioner had paid excise duty based on the annual capacity production calculated on the basis that the maximum packing speed of the machine falls in the category of 301-750 pouches per minute. - These findings have a direct be .....

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issue of packing quality was not raised earlier pales into insignificance. - The enquiry initiated against the petitioner company by letter dated 18.11.2015, in the facts of this case, ought not to be permitted to be continued and, therefore, the enquiry initiated in relation to packing machine ID No. 131023840 is quashed - petition allowed - decided in favor of petitioner. - WP (C) 6065/ 2016 - Dated:- 22-6-2017 - Arup Kumar Goswami, J. For the Petitioner : Dr. A.K. Saraf, Senior Advocate, .....

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r terminating an enquiry initiated against the petitioner by the respondent No.3, i.e. Assistant Commissioner of Central Tax (Anti-evasion), by letter dated 18.11.2015. The petitioner company has its manufacturing units in, amongst others, at Agartala and Guwahati and is engaged in manufacturing goods (Pan Masala), notified under Section 3A of the Central Excise Act, 1944 (for short, 1944 Act ). The petitioner is registered under the 1944 Act. 3. When the writ petition was moved, this Court, by .....

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ons, one by the Commissioner of Central Excise and Service Tax, and the other by the Assistant Commissioner of Central Excise (Anti-evasion) were filed and the said applications were registered as I.A. (Civil) No.2024/2016 and I.A. (Civil) No.2178/2016, respectively. When these two Interlocutory Applications were taken up for consideration on 16.03.2017, learned counsel for the parties had suggested that instead of taking up the same, the writ petition may be taken up for disposal as hearing of .....

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acturing Pan Masala (without tobacco) pouches. The estimated speed of the machine mentioned in the quotation was 900-1000 pouches per minute for pouch length of 90 mm for filling 18-22 grams of Pan Masala. The purchase order was placed on the basis of the said quotation. However, because of certain technical issues the petitioner was advised by the manufacturer, Sanko Machinery Company Ltd., to operate the machine at its optimum speed of around 750 pouches per minute and see the results before t .....

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le 6 of the Rules having provided for a declaration to be filed by the manufacturer of notified goods as defined under the Rules, the petitioner enclosed thereto the first declaration in Form-1 under the Rules for the machine in question. In the said declaration, the maximum packing speed of the machine was declared as 750 pouches per minute. By a letter dated 17.01.2014, the Assistant Commissioner, Central Excise, approved the declaration and fixed the packing capacity and rate of duty in terms .....

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oved till June, 2014. (c) However, as the petitioner decided to operate the machine at a higher speed on an experimental basis, by a letter dated 18.07.2014, it filed a declaration indicating that the machine would be operated for manufacturing of Rajanigandha Pan Masala of 18 gms (plus 10% extra) pouch (RSP: ₹ 50/- per pouch) with maximum packing speed of 1000 pouches per minute. The declaration was approved by the Assistant Commissioner of Central Excise by an order dated 23.07.2014. Sub .....

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ce of Notification No.6/2015-Central Excise dated 01.03.2015, brought into effect from 01.03.2015 amending the Notification dated 01.07.2008, there was a change in the method of determination of duty payable by a manufacturing unit. Section 4 was amended to read that the factors relevant to the production of notified goods shall be the number of packing machines in the factory of the manufacturer and the maximum packing speed at which such packing machines can be operated for packing of notified .....

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spect of the packing of the pouches, the petitioner sent an e-mail dated 24.04.2015 to Sanko Machinery Co. Ltd. informing it about the problems encountered and requesting necessary rectification. Sanko Machinery Co. Ltd. responded by an e-mail dated 30.04.2015 stating that the machine was not capable of running at a packing speed of 1000 pouches per minute and that it would run smoothly at the packing speed of 740-750 pouches per minute. (g) On 13.05.2015, the petitioner informed the Deputy Comm .....

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05.2015, approved the declaration and allowed de-sealing and sealing of the machine as requested. Annual capacity of production was also accordingly determined. (h) On 26.05.2015, the petitioner wrote a letter to the Assistant Commissioner, Central Excise, informing that due to receipt of customer complaints, it had decided to discontinue its operation and, therefore, requested to depute an officer on 29.05.2015 at 23:55 hours to uninstall and seal the said machine. It was also informed that it .....

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of Central Excise informing that the manufacturer had communicated that the high end CPU of the machine does not synchronize with the internal checks and controls of the machine and, therefore, it was decided to downgrade the CPU and, after change over, it would like to conduct a non-commercial run to find out the maximum packing speed of the machine. By the letter, it was informed that new CPU had already been imported and engineers would come for necessary alterations and the machine was expe .....

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he machine. Direction was also issued to destroy the pouches manufactured during trial run. One Mr. S. K. Dutta, a Government Registered Chartered Engineer, was also appointed by the Assistant Commissioner of Central Excise vide another order dated 15.06.2015 for the purpose. Trial run was conducted and it was concluded that maximum packing capacity of the machine is 730 pouches per minute for both 18 gm. and 10 gm. pouch. Based on his report, in terms of Rule 6 of the Rules, as amended, the Ass .....

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No.3 wrote a letter on the subject of an enquiry in relation to the machine and requiring the petitioner to submit, by 26.11.2015, the documents, namely, (i) Purchase Order, (ii) Pro-forma Invoice, (iii) Invoice, (iv) Packing List, (v) Bill of Entry, (vi) Consignment Note/Transport Documents, (vii) Machine Literature (in original), (viii) Handbook/Manual of Operation of Machine (in original), (ix) All annexure/enclosures received (from the manufacturer/supplier) along with the machine, (x) Paym .....

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ays on 29.11.2015 and 30.11.2015 and, therefore, requested deputing of an officer to de-seal and eventual uninstalling and sealing of the machine. Declaration was also made in Form-1 showing maximum packing speed of the machine as 750 pouches per minute. (m) In reference to the said letter, the Assistant Commissioner responded by his letter dated 25.11.2015. In the said letter, declarations made by the petitioner were reproduced in the form of a tabular chart. On the basis of the declarations ma .....

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iberty to appear in person, failing which it was indicated that assessment would be done on the basis of available records. The petitioner, vide its letter dated 27.11.2015 responded to the said letter highlighting that re-determination of packing speed was based upon a technical trial run of the machine by the then Assistant Commissioner of Central Excise with a team of his officers and a Chartered Engineer duly appointed by the department, conducted in their physical presence. Request was made .....

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n 28.11.2015, the petitioner wrote back that it would not operate the machine as proposed vide letter dated 23.11.2015 and, accordingly, withdrew the declaration filed on 23.11.2015. (o) In relation to the enquiry undertaken, the Assistant Commissioner (A.E.) issued another letter on 04.12.2016 requiring the petitioner to furnish within 09.12.2015 the basis for declaring variant parameters in respect of maximum packing speed (pouches/minute) in respect of the very same machine and the original c .....

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o appear in person and to produce documents and records. A Schedule was given indicating the matters on which statements were sought for and also indicating the documents needed to be produced. Similar summons was issued to Mr. C. Roy Choudhury on 05.01.2016 with almost an identical Schedule with the addition relating to technical alterations made in the machine. Summons dated 27.01.2016, 23.03.2016 and 09.05.2016 were also issued to Mr. Shantanu Kumar Sarma (DGM, Excise), Mr. Manabendra Deb (DG .....

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er on 03.06.2016. (q) On 13.01.2016, the petitioner submitted a letter dated 12.01.2016 to the Commissioner of Central Excise and Service Tax praying for a detailed physical examination of the machine to determine the maximum packing speed of the machine as well as for withdrawal of the investigation. Furthermore, the petitioner also filed an appeal on 25.01.2016 under Section 35 of the Act before the Commissioner of Central Tax (Appeals) against the order dated 27.11.2015. Sanko Machinery Compa .....

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ing that he did not have any specific responsibility pertaining to Central Excise and that the investigation may be completed on the basis of information furnished by various officers of the petitioner Company. The respondent No.2, then sent a letter dated 27.07.2016, asking him to intimate the name(s) of the Director(s) who is/are responsible to take decisions in matters pertaining to Central Excise as examination of the Director was required to complete the investigation. In response to the sa .....

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31.08.2016, passed by the Commissioner of Appeals, the appeal of the petitioner preferred against the order dated 27.11.2015, passed by the Assistant Commissioner, was allowed by setting aside the same and the adjudicating authority was directed to re-determine the production capacity after observing the formalities laid down in Rule 6(2) and Rule 6(6) of the Rules and to pass necessary orders accordingly. (t) In spite of the above adjudication, the respondent No.2 again issued a summons on 16.0 .....

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change/replacement of CPU resulting in short payment of Central Excise duty to the tune of ₹ 52 lakh per day, amounting to ₹ 27.06 crores and that the officials who had been summoned are the officials who are directly involved in changing of machine parts, such as, Controller for regulating the speed of the machine or who had consented to the mis-declaration of speed of the machine, which is less than the actual operating speed of the machine, to the department. It is averred that a .....

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ioner Company misled and the speed of the machine was lowered by way of fraudulent manipulation and the report of the Chartered Engineer and the circumstances under which it had been issued was also being enquired into. No quality issue of the pouches was raised when the criterion for determining the amount of Central Excise duty payable was not dependent on the maximum speed of the machine and the plea raised presently is a bogey, not supported by proof of waste generated or return of goods. Th .....

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1000 pouches per minute for the period from July 2014 to March, 2015, there was no question for causing any enquiry, including physical verification, to ascertain or determine the maximum speed of the machine at which it can be operated either in terms of Rule 6(2) or Rule 6(6) of the Rules. It is denied that the petitioner was pressurized to make any deposit during the enquiry. The Certificate dated 06.04.2016 of the manufacturer was procured by the petitioner after making specific request and .....

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of fact and contravention of provisions of law. It is pleaded that the enquiry and the order in appeal are mutually exclusive in that while the enquiry undertaken is regarding evasion of Central Excise duty by way of fraudulent manipulation of the maximum speed of the machine by the petitioner, the order in appeal emanates from the order dated 27.11.2015 accepting a single declaration dated 23.11.2015 with modification of maximum speed of the machine. It is also stated that against the aforesaid .....

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t and suppression of facts are denied as baseless and lacking in foundation. It is asserted that the enquiry and the order of the Commissioner of Appeals are on one and the same issue and the stand taken to the contrary in the affidavit is plainly misconceived and the issue having been decided and the same having not been questioned by filing appropriate appeal under Section 35B/35E of the Act, continued enquiry is illegal and the respondents have misused the provisions of Sections 11A and 14 of .....

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1-750 pouches per minute. The petitioner Company had declared the speed at 750 pouches per minute even when speed was not relevant for duty purpose, and had subsequently changed it to 1000 pouches per minute, when packing speed of the machine was relevant, and continued to declare it as such till such time the Company started getting complaints about the packing of the pouches. 7. Dr. Saraf has submitted that the declaration of maximum packing speed of the machine in question having been duly ap .....

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der Section 35E of the Act. Further contention of Dr. Saraf is that the issue, revolving around which the impugned enquiry had been commenced and is going on for nine months prior to the approach made by filing this writ application, had been decided in favour of the petitioner by the appellate authority by passing an order dated 30.08.2016 and, therefore, the impugned enquiry and issuance of summons is nothing but an abuse of power provided under Section 14 of the Act. It is also contended by h .....

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machine in order to set at rest any doubt or misgivings that the respondents might have had harboured, manifestly demonstrates that the enquiry is continued only to harass the petitioner and its senior officials despite the fact that the maximum packing speed of the machine had been physically verified and approved by the Assistant Commissioner of Central Excise vide order dated 16.05.2015. In support of his contentions, Dr. Saraf has placed reliance on the following judgements: Continental Foun .....

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Dinesh Fragrance -Vs- Union of India [WP(C) 3243/2015]. 8. Mr. B. Sarma, learned Standing counsel, Central Excise and Customs, has submitted that the enquiry proceeding was initiated under Section 11A of the Act for short payment of about ₹ 27 crores of excise duty occasioned by manipulation of maximum packing speed of the machine by replacement of the CPU. It is strenuously argued by him that the order dated 30.08.2016 passed by the appellate authority cannot be an impediment for conducti .....

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raud, willful mis-statement, suppression of fact and contravention of the provisions of the rules. He has submitted that the enquiry is almost complete and unless the Director of the petitioner Company is not summoned for the purpose of the enquiry, the same will be vitiated on account of Section 9AA of the Act. Mr. Sarma places reliance on the following judgements: Union of India & Ors. -Vs- Sudarshan Plywood Industries Ltd. & Ors., reported in 1997 (2) GLT 1, Assistant Collector of Cen .....

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have perused the materials on record. 10. From the stand taken in the affidavit-in-opposition of the respondents, it is clear that the respondents had not disputed the fact that the petitioner Company had changed or replaced the CPU (interchangeably used as Controller) and that the subject matter of enquiry is manipulation of the machine in a fraudulent way. By doing so, the speed of the machine is lowered, which has resulted in short payment of Central Excise duty. As a part of enquiry, summons .....

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ecessary including physical verification and, thereafter, approve the declaration including the declaration with regard to maximum packing speed at which the machine can be operated for packing of notified goods of various retail sale prices and, consequently, determine and pass order concerning the annual capacity of production of the factory within 3(three) working days. The second proviso to Sub-rule 6(2) provides that if a manufacturer does not receive the approval in respect of his declarat .....

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ation of the machine. The expression used in Sub-rule 6(2) is maximum packing speed at which each of the packing machines available in his factory can be operated for packing . The declarations submitted by the petitioner were approved as and when the same were submitted. After the CPU was replaced, a non-commercial trial run was undertaken in presence of departmental officer as well as a Government registered Chartered Engineer nominated by the Department. According to report submitted, in the .....

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and above. 13. While passing the aforesaid order dated 27.11.2015, it was noted that there was no good reason for physical verification of the machine to determine the maximum packing speed at which it could be operated. The aforesaid order was set aside by the Commissioner (Appeals) vide his order dated 30.08.2016 on an appeal preferred by the petitioner. 14. While passing the said order, the appellate authority had recorded the finding that provisions of Rule 6(6) of the Rules do not bar a ch .....

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on record and nothing was mis-declared. There was no concealment of any material fact when the physical trial was conducted and the Officers had carried out the verification by applying strict parameters. It was recorded that Chartered Engineer s certificate is an authentic document to verify the speed of the machine as discussed in paragraph B42 of the minutes of Tariff Conference held on 28.10.2015 and 29.10.2015. It was held that there is no record/evidence of clandestine removal of finished .....

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n and findings of the appellate authority has not been interfered with by any forum. 16. It is not in dispute that the petitioner had paid excise duty based on the annual capacity production calculated on the basis that the maximum packing speed of the machine falls in the category of 301-750 pouches per minute. 17. Having regard to the findings recorded by the appellate authority, I am of the considered opinion that these findings have a direct bearing on the legality and tenability of the enqu .....

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pales into insignificance. 18. I am unable to subscribe to the contention advanced by Mr. Sarma that the issue before the appellate authority was only in respect of legality and validity of the order dated 27.11.2015 in respect of one single declaration. No doubt, the challenge was in the context of the order dated 27.11.2015, but while examining the validity of the said order, the appellate authority had taken into consideration the mechanism of the Rules and had interpreted the same in a manne .....

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be a casualty. 19. In Kamlakshi Finance Corporation Ltd. (supra), the Supreme Court had held that in disposing of the quasi-judicial issues, revenue officers are bound by the decisions of the appellate authorities. The principles of judicial discipline require that the orders of the higher appellate authorities should be followed unreservedly by the subordinate authorities. The mere fact that the order of the appellate authority is not acceptable to the department cannot furnish a ground for no .....

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) had declared that the machine cannot work/pack at any condition at a speed of packing more than 700 pouches per minute and, on the teeth of such declaration, the Division Bench refused to accept the stand of the respondents that the machine was having the capacity to produce 1000 pouches per minute notwithstanding the fact that the petitioner therein had, on his own, declared the production speed of the packing machine up to 1000 thousand pouch per minute. 21. Sri Ganesh Chandra Mrig (supra) w .....

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ector than to apply his mind to the books of account, documents seized in course of search and seizure and the documents produced thereafter to find out the amount/quantum of Excise Duty evaded, if any. It was observed that the Central Excise authority should not summon any person in exercise of powers under Section 14 of the Act in a mechanical manner. In A.S. Corporation (supra), the Court had recorded a finding that each and every detail, which was called for by way of summons, already existe .....

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necessary to be spelt out at that juncture. In the instant case, the Director of the company is summoned, as it appears from the pleadings in the affidavit as well as submissions of Mr. Sarma, on the grounds that he was instrumental in taking a decision for replacement of the CPU and that the enquiry will be vitiated on the touchstone of Section 9AA of the Act. Reliance placed on Section 9AA is wholly misconceived as Section 9AA is on the subject of offences by companies and the same has no rele .....

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e authority had made it clear that maximum speed of the machine can be altered, that too, without any explanation. 22. Continental Foundation (supra) was in the context of the Revenue invoking the extended period of limitation under Section 11A of the Act before its amendment with effect from 08.04.2011 and, in the context thereof, it was observed by the Supreme Court that mere omission to give correct information is not suppression of fact unless it was deliberate to stop payment of duty. 23. I .....

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d set aside the judgement of the Single Judge and had allowed the appeal by the Revenue. The facts in Sudarshan Plywood Industries Ltd. (supra) are entirely different from the facts of the instant case. In Dunlop India Ltd. (supra), the Supreme Court deprecated the practice of grant of interim orders which has the potential of causing public mischief for mere asking. As the instant writ petition is taken up for disposal, the decision in Dunlop India Ltd. (supra) will have no application in the p .....

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