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TMI Blog2011 (6) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... e Deputy Commissioner did so. order dated 4 January 2011 has now been quashed and set aside on the ground of a breach of the principles of natural justice, in Writ Petition 967 of 2011. Petitions would accordingly stand disposed of. - 894 of 2011 - - - Dated:- 20-6-2011 - Dr. D.Y. Chandrachud and Anoop V. Mohta, JJ. REPRESENTED BY : S/Shri Navroz Seervai, Sr. Advocate with Firdosh Pooniwala and Rahul P. Jain, i/b RES Legal, for the Petitioner. S/Shri R. Ashokan with S.D. Bhosale, for the Respondent. [Judgment]. P.C. : Rule, by consent returnable forthwith. With the consent of the learned counsel appearing for the contesting parties, Writ Petition 967 of 2011 is taken up on Board. Both these Petitions are taken up for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notified goods has to furnish in Form-I information pertaining to the packing machines to be used by him before the commencement of commercial production. Under sub-rule (2) of Rule 6, on the receipt of a declaration referred to in sub-rule (1), the Deputy Commissioner of Central Excise or, as the case may be, the Assistant Commissioner is required after making such enquiry as may be necessary including physical verification, to approve the declaration and to determine and pass an order concerning the annual capacity production of the factory. The declaration in Form-1 which precedes the order of the Deputy Commissioner requires the manufacturer to inter alia furnish information about the number of single track packing machines available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the fifth day of the same month and an intimation has to be filed with the Superintendent of Central Excise in Form-2. Failure to pay duty attracts a liability to pay interest. In the event of an addition in packing machines during the month, differential duty is payable by the fifth of the following month. Moreover, in the case of discontinuation of manufacturing or the commencing of manufacturing goods of a new retail sale price during the month, the duty is recalculated and the differential duty is payable by the fifth of the following month. 5. In the present case, the Petitioner initially submitted Form-1 on 21 October 2009 prior to the commencement of commercial production using two machines. By an order dated 26 October 2009 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 2010 until 16 December 2010. The interim protection was continued thereafter by subsequent orders passed by the Division Bench. On 28 December 2010 the Petitioner addressed a communication to the Deputy Commissioner of Central Excise by which intimation was furnished of the arrival of the fourth machine. The Deputy Commissioner was requested to make a duty determination in respect of the said machine in accordance with the provisions of Rule 6 and a determination in regard to the annual production capacity of the new machine. The Deputy Commissioner passed an order on 4 January 2011 by which he purported to revise the annual production capacity of the existing three machines in addition to making a determination in respect of the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xercised his powers in breach of the principles of natural justice. Originally as we have noted, the Deputy Commissioner had passed an order on 26 October 2009 assessing the annual production capacity and the monthly duty liability in respect of two machines at Rs. 77 lacs per month. On 18 December 2009 the Deputy Commissioner passed an order by which the annual production capacity was assessed in relation to three machines and the monthly liability was assessed at Rs. 95 lacs. The Deputy Commissioner proceeded to issue a revised order on 30 November 2010 by which he suo moto revised the monthly duty liability from Rs. 95 lacs to Rs. 285 lacs. No hearing was furnished to the Petitioner before the impugned order was passed. No material has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und, on which we have interfered with the impugned order, we are of the view that it is not necessary at this stage to relegate the Petitioner to the remedy of an appeal. Accordingly, we quash and set aside the impugned order dated 4 January 2011 passed by the Deputy Commissioner of Central Excise. The Deputy Commissioner shall pass fresh orders in accordance with law after furnishing to the Petitioner an opportunity of being heard. 11. Insofar as the first petition is concerned (Writ Petition 894 of 2011) the Petition, as noted earlier, was for a direction restraining the Respondents from refraining the Petitioner from commencing production till the final disposal of the appeal which the Petitioner intended to file against the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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