9911796707
TMI Blog2017 (10) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The Commissioner fell in error in treating the said machine as a two track machine - appeal dismissed - decided against Revenue. - Appeal No. E/255/2011-EX [ DB ] - Final Order No. 70973/2017 - Dated:- 8-9-2017 - Mr. Anil Choudhary, Member ( Judicial ) And Mr. Anil G. Shakkarwar, Member ( Technical ) Shri Rajeev Ranjan, Joint Commissioner (AR) for Appellant Shri Kashif Zaidi, Advocate for Respondent ORDER Per: Anil Choudhary The present appeal is filed by the Revenue against Order-in-Appeal No. 318-CE/APPL/NOIDA/10 dated 20/10/2010 passed by Commissioner of Central Excise Customs (Appeals), Noida. 2. Heard the parties. 3. The issue in this appeal relates to the capacity of production, whether the one pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, the Commissioner passed an order in original dated 31.1.2012 assessing the rate of duty treating the machine as a Double Track Machine. The Commissioner also imposed penalty. The assessee, being aggrieved, filed an appeal before the Custom Excise and Service Tax Appellate Tribunal, which was allowed and the order of the Commissioner was set aside. 4. We find that pursuant to review of the order of the production capacity, the Deputy Commissioner vide the subsequent order dated 29th July, 2010 suo-motu reviewed the capacity without issuing of show cause notice to the respondent-assessee. The said order of 29th July, 2010 was challenged by respondent-assessee before learned Commissioner (Appeals) who set aside the said order and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between a single track and multiple track machines and the duty is paid accordingly. Duty is not paid on the basis of number of pouches produced per minute per month. As per the notification dated 1.7.2008, the rate of duty has been fixed per packing machine per month and not on the turnover of the pouches manufactured. The Central Excise and Customs Board has also issued a circular dated 24.1.2014 clarifying that the duty payable under the notification dated 1.7.2008 is determined on deemed production with respect to the number of operating packing machines in the factory and not on the basis of the actual production by a unit. In the light of the specific finding given by the Tribunal, being the last fact finding authority, to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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