The Commissioner, CGST, Delhi Versus M/s DAY & Co.
Central Excise
2019 (2) TMI 938 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 15-2-2019
APPEAL No. E/52440/2018-EX[SM] – FINAL ORDER NO. 50244/2019
Central Excise
Mrs. Archana Wadhwa, Member (Judicial)
Ms. Tamanna Alam (AR) for Revenue
Shri Archit Upadhayay (Advocate) for Assessee
ORDER
Per: Archana Wadhwa
Being aggrieved with the order passed by Commissioner, vide which he has vacated the show cause notice issued to the respondents, Revenue has filed the present appeal. I have heard Ms. Tamanna Alam learned A.R. appearing for the Revenue and Shri Archit Upadhayay learned advocate appearing for the respondents.
2. The Noticee were engaged in the manufacture of Pan Masala containing chewing tobacco (Gutkha) under the brand name “KESAR PREMIUM GUTKHA” and “KESAR GULAB GUTKHA” of MRP Rs. 1.50 per pouch and Rs. 5.00 per pouch falling under Chapter heading No.24039990 and registered with Central Excis
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.07.2011 had requested for de-sealing of Five packing machines of MRP Rs. 1.50 per pouch, which were de-sealed on 11.07.2011 by the Superintendent. It was also observed during the visit that there was no seal on one pouch packing machines of GUTKHA of MRP Rs. 5.00 per pouch which was sealed on 01.06.2011. Accordingly, a record of proceeding on 11.07.2011 at 0030 Hrs was prepared.
6. In their statement recorded on 12.07.2011, Sh. Kamaljit Singh, authorized signatory of the Noticee and Sh. Harish Kumar, proprietor of the unit recorded on 13.07.2011 both recorded under Section 14 of the Central Excise Act, 1944, categorically admitted that no seal was found on the machine at the time of visit of the officer on the intervening night of 10.07.2011 – 11.07.2011.
7. As regards, no raw material or packing material or finished goods not lying near the machine at the time of visit of the officer is of no relevance in the present case as no such verification is required to be done at the time o
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. The same is recoverable from them under Section 11A of the Central Excise Act, 1944 read with Rule 9 of the Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 and they appear to be liable to penalty under Rule 25 of the Central Excise Rule, 2002 and Rule 17 of Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008.
10. Accordingly, the Noticee was called to show cause as to why:
Central Excise Duty amounting to Rs. 49,16,667/- should not be demanded and recovered from them under Section 11A of the Central Excise Act, 1944 read with Rule 9 of Pan Masala Packing Machines (Capacity Determination & Collection of Duty) Rules, 2008 and why the said amount should not be adjusted against the amount of Rs. 1,28,00,000/- already lying unutilized/balance in the accounts of the Noticee for payment of Central Excise Duty; interest under Section 11AA of the Central Excise Act, 1994 should not be demanded and recovered; penalty und
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who had taken into account the entire evidence on record including the Electricity Bills, Labour information and other records and had concluded that there was no mala fide intention on the part of the assessee and the records maintained by the party do not show any discrepancy and accordingly he recommended for closure of the investigations.
12. The Commissioner in his impugned order has taken the said report of the Deputy Commissioner into consideration and has concluded that in terms of said report no irregularity was found. He further observed that there is no clinching evidence produced by the Revenue overriding the findings of the Deputy Commissioner or establishing any unauthorized manufacturing activities. The show cause notice does not allude to any solid evidence to substantiate the allegations raised therein other than the fact that the said pouch making machines of Rs. 5 was found unsealed and the seal was found to be lying next to the machine. In the absence of any eviden
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