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TMI Blog2018 (3) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... he end of the respective months, which is before the 5th of the following month - this Tribunal has repeatedly held that the interest liability does not arise as the machine was unsealed and re-installed only after middle of the month or nine days before of the close of the month. Appeal dismissed - decided against Revenue. - Appeal No. E/60945/2017-EX[SM] - Final Order No. 60123/2018 - Dated:- 7-2-2018 - Mr. Devender Singh, Member ( Technical ) For the Appellant : Sh. A.K. Saini, A.R. For the Respondent : Sh. Ashwani Sharma, Advocate ORDER Per : Devender Singh Revenue is in appeal against the Order-in-Appeal dated 14.08.2017 wherein the Ld. Commissioner (Appeals) has set aside the order of the adjudicating auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed this appeal. 3. Ld. A.R. appearing for the Revenue submits that the Commissioner (Appeals) has wrongly applied the 5th proviso of Rule 9 of CTUTPM Rules, 2010 because there was no new machine which was installed and that Ld. Commissioner (Appeals) instead should have gone by the 2nd proviso to Rule 8. He also relied upon the judgment of Hon ble Delhi High Court in the case of CCE, Delhi-I vs. Shakti Fragrances Pvt. Ltd. Unit-II reported in 2015 (324) ELT 390 (Del.). 4. Ld. Advocate appearing for the respondent submits that Rule 6 of the Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010, provides for the concept of available machines, installed machine and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined the record. 6. I find that in the present case, the respondent was not having any machine in operation during the period 15.04.2015 to 22.05.2015 and 01.06.2015 to 15.06.2015 in May 2015 and June 2015 as the same had been sealed and deemed uninstalled. As such no duty could be discharged in advance. After intimation to the department, the machine was desealed on 23.05.2015 and 15.06.2015 by Range Officer, and during the last 9 days/last fortnight of the respective months, the machine was put to operation and the duty applicable was paid before the end of the respective months, which is before the 5th of the following month. In such a situation, this Tribunal has repeatedly held that the interest liability does not arise as the mach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing machines installed in the factory during that month. This provision thus presumes that installed packing machines correspond to operating packing machines and the duty paid or duty payable under Rule 7 is in terms of the installed machines. Sub-rule (5) of Rule 6, however enacts that the machine which the manufacturer does not intend to operate shall be uninstalled and sealed by the Superintendent of Central Excise and removed from the factory premises under his physical supervision; and the proviso thereto states that where it is not feasible to remove such packing machine out of the factory premises, it shall be uninstalled and sealed by the Superintendent of Central Excise in such a manner that it cannot be operated. 8. On ..... X X X X Extracts X X X X X X X X Extracts X X X X
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