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TMI Blog2021 (6) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... mber of machine or the RSP of the pouches is contrary to the declaration, than the assessee can subject to demand of the duty and levy of penalty. Admittedly, in the facts of the present case, the Department have not found any case of mis-declaration or any other misgiving on the part of the appellant. The whole case of Revenue is made out on the basis of assumptions and presumptions, based on the subsequent machine installed in the month of May, 2010, which is not permissible under the scheme of CT Rules, 2010. Further it is found that the order determining duty liability dated 26.04.2010 has not been appealed, and as such the same is binding on the Department. Appeal allowed - decided in favor of appellant. - Excise Appeal No. 536 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as by way of replacement, to be installed and operated w.e.f. 01.05.2010. The said machine was supplied by M/s Pakona Engineers (I) Pvt. Limited vide Invoice No. 003 dated 30.04.2010. 4. Accordingly, the appellant, due to replacement of the machine, filed fresh declaration in the prescribed form-1 on 03.05.2010 as required under CT Rules, 2010. Based on the declaration and pursuant to verification carried out by the Department, the Assistant Commissioner vide order No. 2/2010 dated 05.05.2010, determined the duty payable as ₹ 14,25,000/- p.m. Subsequently, the Assistant Commissioner vide letter dated 02.06.2010 intimated the Superintendent (Technical), that the appellant have installed one FFS (PK-91ZP) packing machine. This machin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited differential duty of ₹ 14,25,000/- vide challan dated 20.12.2010. For the subsequent month from July, there is no dispute as the appellant deposited the duty amount of ₹ 28,50,000/-. 6. Under the aforementioned facts, it appeared to the Department that as the machine installed in May, 2010 have been accepted as double track machine‟ by the appellant, and duty paid accordingly new machine, which was installed in the Month of April, 2010 (which was returned to the manufacturer being defective on 30.04.2010) and further as the new machine has been bought from the same manufacturer and at the same price or assessable value of ₹ 15 lakhs, and further that the description in both the invoices dated 31.03.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le exercise of power. There is no scope under the CT Rules, 2010 to demand duty based on assumptions and presumptions. Admittedly, the Department have never found the declaration wrong for the month of April, 2010. Admittedly, the duty for the month of April was determined vide adjudication order No. 1/2010 dated 26.04.2010 by the Assistant Commissioner, after physical verification of the machine. The said order dated 26.04.2010 have attained finality and have never been appealed against by the Department. The Department have made no enquiry from the supplier of the machine. Learned Counsel further draws my attention to the clarification issued by the machine manufacturer M/s Pakona Engineers (I) Pvt. Ltd., dated 14.06.2018 which reads as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of installing and uninstalling the machine was under the supervision of the Department and such wild allegation is based on assumptions and presumptions, cannot form basis for raising demand. He further urges that the whole demand have been raised by invoking the extended period of limitation which is not available to Revenue under the admitted facts and circumstances. Accordingly, he prays for allowing of the appeal with consequential benefits. 11. Learned Authorised Representative appearing for the Revenue has relied on the impugned order. 12. Having considered the rival contentions, I find that under the scheme of CT Rules, 2010 read with Section 3A of the Act, unless the declaration filed by a manufacturer is found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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