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TMI Blog2023 (9) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... clauses itself makes the distinction between the operating/installed machines as compared to available machine. he appellant did not intend to operate machine No.1 (SL110S,L2), therefore they requested for sealing/uninstalling of the same vide request letter dated 27.2.2012 in accordance with Rule 6(5) ibid and the same was uninstalled sealed by the jurisdictional authorities on 29.2.2012. No reasoning is available on record as to why the same was not removed from the factory premises and that does not mean that wherever a sealed/uninstalled machine is available in the factory it necessarily has to be taken into account while determining the annual production capacity as there is an exception provided in Rule 6(5) by way of proviso stating that where it is not feasible to remove packing machine out of factory premises, it shall be uninstalled and sealed by the Superintended in such a manner that it cannot be operated. Merely because the sealed/uninstalled packing machine is available in the factory premises is not sufficient to saddle the manufacturer with the duty liability except if it falls under Rule 18 (2) ibid which provides for Penalty for contravention etc. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the filing the instant appeal are stated in brief as follows. The appellant is the holder of Central Excise Registration for manufacture of chewing tobacco without lime tube, the excise duty on which is charged on the basis of capacity of production and the same is governed by the Chewing Tobacco Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. In compliance with the said Rules, the appellant vide letter dated 27.2.2012 requested the Range Superintendent to seal/uninstall the machine no.1 on closing hours of 29.02.12 . Rule 6 ibid requires the manufacturer to file declaration in prescribed Form- 1 with the concerned authorities and based on the said declaration the concerned authority determines and pass order on the Annual capacity of Production of the factory. Accordingly, the appellant vide letter dated 23.10.2012 intimated the authorities concerned about installing of one FFS Packing machine w.e.f. 30.10.2012 and requested them to determine annual production capacity w.e.f. 30.10.2012 in terms of Rule 6(2) ibid and alongwith the said communication they filed Form- 1. In the said communication they specifically mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Rules, 2010, hence as per 2nd proviso to Rule 6(2) ibid the annual capacity of production stood determined finally in accordance with the declaration made by the appellants in Form-1 and therefore both the authorities below have acted in violation of the Rules, 2010. He further submits that only one machine i.e. Machine No. 2 R-52G/4 was installed in the factory on the relevant date when the jurisdictional superintendent visited the factory and drew panchnama on 29/30.10.2012 and no other machine was operative in the factory premises as per the said panchnama, therefore both the authorities below erred in taking into consideration the Machine No. 1(SL110S, L2) which was lying sealed/uninstalled, while determining the production capacity w.e.f.30.10.2012. He also submits that under the Rules, 2010 the adjudicating authority was only required to determine the annual capacity of production, however, the said authority also determined the monthly duty liability which is beyond his jurisdiction and in support of his submission learned counsel placed reliance on the decision of the Tribunal in Appellant s own case in the matter of Godfrey Phillips India Ltd. vs. CCE; 2017(352) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the factory premises intended to be used by the manufacturer for manufacture of notified goods of different retail sale prices, as he thinks proper, for effective segregation of the parts or sections of the premises and the machines to be used in such parts or sections before granting the approval: Provided further that if the manufacturer does not receive the approval in respect of his declaration within the said period of three working days, the approval shall be deemed to have been granted subject to the modifications, if any, which the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, may communicate later on but not later than thirty days of filing of the declaration. Xxx xxx xxx (4) The number of operating packing machines during any month shall be equal to the number of packing machines installed in the factory during that month. (5) The machines 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. Provided that in case it is not feasible to remo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that goods have been manufactured in or cleared from a unit which is not registered with the jurisdictional central excise office, then, the duty liability of such unit shall be determined on the basis of number of packing machines found available in the premises of the unit ..[emphasis supplied] . This rule is applicable only where the manufacturing activity is carried out from an unregistered unit, which is not the case herein therefore this rule has no application. We do not agree with the finding recorded by learned Commissioner in the impugned order that although the sealing of the machine No.1 is confirmed but its un-installation is not established. When once the appellant has written to the jurisdictional authorities for sealing/uninstallation of the said machine then it s the bounden duty of the authorities concerned to do the needful and if they failed to do their part then the appellant cannot be blamed or made to suffer for that and therefore Rule 8 ibid, which has been relied upon by the authority below, cannot be applied. Although the authorities below expect appellant to ensure compliance regarding uninstallation and removal of the machine from the factory as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also raised the issue about the deeming acceptance of the declaration given by them in Form-1 as per Rule 6 ibid. Although it has been recorded as the very first ground by the learned commissioner in paragraph 3 of the impugned order but he failed to give any finding on it. Few dates are relevant to decide this issue. The declaration in Form-1 was filed by the appellant on 23.10.2012 whereas the order approving the said declaration with modification was issued only on 4.12.2012 and communicated to the appellant on 17.12.2012. Both these dates are not disputed anywhere by the revenue. 2nd proviso to Rule 6(2) specifically provides that if the manufacturer does not receive the approval of his declaration within three working days then the approval shall be deemed to have been granted and if the concerned authority is desirous of making any modification to the said declaration made by the manufacturer then the same can be communicated later also but not beyond thirty days of filing of the declaration. The upper time limit for any modification to be made by the concerned authority is of thirty days and it means that after thirty days the declaration made by the manufacturer in Form-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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