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TMI Blog2019 (1) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the period from January 2015 to September 2015; the other ten appeals arise from order-in-appeal no. SK/80 to 89/Th-II/2017 dated 15th March, 2017 of Commissioner of Central Excise (Appeals), Mumbai- I setting aside the order of the original authority determining the production capacity on which duties of central excise was to be calculated. As the disputes are not dissimilar, we dispose of these appeals by a common order. 2. With the substitution of ad valorem duty effective from 8th March 2010 by liability to be determined on the basis of the capacity of production of the assessee, the discovery that M/s New Kamath Tobacco Co Pvt Ltd had deployed new machines, capable of producing far in excess of that considered normal, led to detailed investigations. According to central excise authorities, the existing machines had been replaced with new machines having capacity of nine lines each in May 2010 and expanded in August 2012 to fifteen lines each. Citing the explanation to rule 5 of the said Rules, that 'for the purpose of this rule, if there are multiple track or multiple line packing machines, one such track or line shall be deemed to be one individual packing machine for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and notification no. 42/2008-CE dated 1st July 2008, is distinct from 'single and multiple track machines' and the application of the Explanation pertaining to the additional process negated the conclusion of deployment of multiple tracks. According to him, the opinion of Indian Institute of Technology, Roorkee must be appreciated in the light of the production facility and he went on to discount the second report of the Veermata Jijabai Technological Institute for not being categorical. 5. Learned Special Counsel informs us that the packing machines used by the assessee has multiple volumetric cups in which predetermined quantity of tobacco is filled and these are placed on a rotary platform with each cup positioned over the prepared pouch in sequence. Therefore, he contends that the claim of the assessee that each of these machines contains only one filling station is not reflective of the fact that each of these cups has the capacity to fill the pouch and therefore requiring that the number of lines be determined by the number of volumetric cups. The picture that emerges from this description is a speedier filling up of pouches as other cups are replenished while a pouch is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duced by a packing machine per month to be as specified in the table for the three periods that have been brought to our notice by the Learned Senior Counsel. For the period up to March 2005, the table indicates the capacity of production per packing machine per month. In the table pertaining to the following year 2015-16 'speed' is indicated for 'chewing tobacco' (other than 'filter khaini') but no such distinction marks 'unmanufactured tobacco'. For the period after 1st April, 2016, 'speed' was not considered as a relevant factor for 'filter khaini' and 'unmanufactured tobacco' but added 'speed' as a determinant for 'chewing tobacco' though not for 'filter khaini' and 'jarda scented tobacco'. It also significant to note that there has been a revision in the capacity of production of unmanufactured tobacco for the period prior to 1st March 2015 and the period thereafter. It would, therefore, appear that the factor for the purpose of section 3A(2) has been notified as also the quantity deemed to be produced. It would therefore, appear that the capacity enumerated in the table is to be multiplied by the number of packing machines for the determination of the duty liability. The rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the elimination of lead time in filling from one single cup, which has not been controverted. Therefore, though the number of pouches produced from machine did increase substantially, the circumstances specified in rule 6(1) for determination does not appear to apply. 10. It is also noteworthy that the said Rules do not throw light on the intent in distinguishing 'single track/single line' and 'multiple track/multiple line' packing machines Therefore, we, as well as the central excise authorities and the assessee, are bereft of any means of interpreting the qualifying expression 'multiple'. No evidence has been produced for us to entertain a conclusion that trade parlance has a connotation which could be adopted for determination. The focus on portions of the show cause notice in the impugned orders, as well as the submission of Learned Special Counsel, would make it appear that a technical opinion from experts in engineering seem to be the only source of enlightenment. That, however, would not be in consonance with the principles that govern levy and collection of tax. The comprehension of the intent of the taxing provision by a person endowed with a normal reasonable mind sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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