TMI Blog2017 (8) TMI 1103X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal allowed - decided in favor of appellant. - Appeal Nos. E/364 & 382/2011-EX [DB] - Final Order Nos. 70791-70792 / 2017 - Dated:- 12-6-2017 - Mr. Anil Choudhary, Member ( Judicial ) And Mr. Anil G. Shakkarwar, Member ( Technical ) Shri Anurag Mishra, Advocate for Assessee Shri Rajeev Ranjan, Joint Commissioner (AR), for Revenue ORDER Per : Anil Choudhary These cross appeals are arise from common Order-in-Original No. 36/Commissioner/LKO/CX/2010 dated 27/10/2010 passed by Commissioner of Central Excise Service Tax, Lucknow. Appeal No.E/364/2011 by assessee-appellant 2. The brief facts of the case are that the appellant was a manufacturer of Pan Masala, Gutkha and Sweet Supari, prior to 01/07/2008 when the Compounded Levy Scheme was introduced. Admitted facts are that the appellant had 10 packing machines in their factory. On 30th June, 2008, they had filed an intimation that they wish to suspend production of their unit with effect from 01/07/2008 till 03/07/2008 (both days inclusive due to off-season). In response thereto the inspector visited the said unit on 01/07/2008 at 10:40 AM and sealed 8 packing machines and further stated that now the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apacity Determination and Collection of Duty) Rules, 2008, the price of MRP ₹ 1.50 is not declared, you are directed to please keep the stock of 72.23 KG laminated rolls as per details in the enclosure till further orders and inquiry. Further, on the same date which is 17/07/2008, Order No.3/2008 was passed by the Deputy Commissioner stating that the appellant have declared that they are manufacturing Pan Masala and Gutkha of Gomti Brand of retail price ₹ 1.00. Further, number of packing machines available in the factory is 8 and 8 machines are installed and further the appellant is entitled to use 8 machines for production of the notified goods and the maximum speed of packing machines have been declared at 135 Pouches per Minute. Further, stating that after making necessary inquiry including physical verification, it is observed that the appellant is manufacturing Pan Masala and Gutkha of Gomati brand with retail sale price of ₹ 1.00 and ₹ 1.50 and number of single track packing machines available in the factory is 10 and appellant is found to be operating 10 packing machines for production of notified goods and further maximum speed of the packing machine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factory and were being used in the manufacture of the specified goods. During the course of verification laminated roles of Gutkha pouches of RSP ₹ 1.50 were also found in the stock which were not declared by the appellant under Para 13 of their declaration dated 10/07/2008. Further, as the provisions of Rule 4, 6(4), 8, there were 10 machines installed in the factory of the appellant on 1st July 2008 and the Deputy Commissioner by his order No.3/2008 dated 17/07/2008 determined the annual capacity considering the installation of 10 pouch packing machines engaged in the manufacture of Gutkha of RSP ₹ 1.50 and Pan Masala of RSP ₹ 1.00. And further the show cause stated that the appellant vide their representation dated 04/08/2008 requested for re-determination of Annual Capacity of production, pleading that till June 2008 in addition to manufacturing Gutkha of MRP ₹ 1.00, occasionally Gutkha of ₹ 1.50 was also manufactured. However, the determination of Annual Capacity of production made on the basis of pouches of MRP ₹ 1.50 evidently which was lying in stock. It further appears that the representation of the appellant is not tenable as they hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne room and/or installed on the machine. It is further urged that appellant-assessee is not required to throw away or remove packing material of different MRP which they do not intend to manufacture for the time being and appellant can always modify its declaration for manufacturing of the notified product namely Pan Masala/Gutkha of a new MRP, after giving duty intimation to the revenue. Thus, the whole case made out against the appellant is untenable, as nothing have been found contrary to their declaration. As such the amount demand raised as short paid, is fit to be set aside along with the penalty imposed. Appeal No.E/382/2011 by revenue 6. Revenue is in appeal against the dropping of demand of ₹ 55.50 Lakhs by the learned Commissioner on Sada Pan Masala for July, 2008 and further ground that non-imposition of proportionate penalty and/or equal penalty is bad. Further, it is urged that the learned Commissioner dropped the demand of duty on Sada Pan Masala holding that there was no evidence on record to indicate that Sada Pan Masala was not manufactured or produced or cleared by the appellant during July, 2008. Sada Pan Masala was reported to be found during stock t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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