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TMI Blog2018 (10) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... R. Shri Gyanendra Kumar Tripathi appearing for the Revenue and Ms. Stuti Saggi advocate appearing for the respondent. 3. As per facts on record the respondent is registered with Central Excise vide Registration No.AADCK3073FXM003 for the manufacturing of Pan Masala containing Tobacco (Gutkha) and paying duty under the provisions of Pan Masala Packing Machine (Capacity Determination and Collection of Duty) Rules, 2008 readwith Notification No.13/2012-CE (NT) dated 17/03/2012. The Rule 4 of these rules states that the factor relevant to the determination of production of goods shall be the number of packing machines in the factory of the manufacturer. Further, Rule 6 of the said rules mandates a declaration to be filed by the manufacture dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period (16 days) of said closure of factory. The Deputy Commissioner, Central Excise Division-V, Ghaziabad, vide his Order-in-Original No.155-R/Div-V/GZB/2012-13 dated 04/02/2013, granted the abatement for the said 16 days from 16/10/2012 to 31/10/2012 amounting to Rs. 1,30,06,452/- as applied by the party, holding that there was no manufacturing & clearance activity during the said period in the factory of the respondent. The said order of the Original Adjudicating Authority was challenged by the Revenue before Commissioner (Appeals), who rejected the appeal by observing as under:- "6.3. It is clear from the above that number of packing machines operating in the factory of the Pan Masala/Gutkha manufacturer has to be ascertained in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the period may be removed within 02 days of said period; and (v) When the manufacturer intends to restart his production of notified goods, he shall inform to the Deputy/Assistant Commissioner of the date from which he would restart production. Then the seal fixed on packing machines would be opened under the physical supervision of Superintendent of Central Excise. I find from the facts of the case discussed in the impugned order that the respondent has fulfilled all the conditions of the Rule 10 to qualify for the abatement of proportionate duty. I observed that appellant has also not disputed the said findings of adjudicating authority. 6.4. I observed that provisions of Rule 6 (5) as contended by the appellant department are appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot be added or substituted to give a meaning more than what is stated in plain language." 4. For arriving at the above finding, the Appellate Authority also referred to the Tribunal decision in the case of Kay Pan Suganth Pvt. Ltd. vs. CCE, Raipur 2013 (287) E.L.T. 129 (Tri.-Del.). We find that in the said decision the Tribunal has observed that an assessee is to only apply for sealing of the machines and it is for the Revenue to seal the machines in accordance with law and if the same has not been followed, the assessee cannot be penalized. In the present case, we note that all the machines were sealed and as such could not have been operated during the period of closure and as observed by Commissioner (Appeals) that even if the De ..... X X X X Extracts X X X X X X X X Extracts X X X X
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