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TMI Blog2024 (2) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... sed only for the purpose of packing sweet supari. Accordingly, there are no merits in the impugned order to that extent. It demands duty contrary to the declaration filed along with the ground plan, which is required in terms of Pan Masala Packing Machines (Determination of Capacity and Collection of Duty) Rules, 2008. Appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Absent on call , for the Appellant Shri Manish Raj , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Original No.48/Commissioner/Lko/CX/2010 dated 31/12/2010 passed by Commissioner of Central Excise Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty Commissioner, Central Excise Division-I Lucknow determined that 9 machines were shown to be available and installed in the factory under the compounded levy scheme. 2.4 Deputy Commissioner, Central Excise, Division-I on declaration dated 17.07.2008 found that there were 9 machines installed in the factory. Subsequently, three machines were sealed on 03.07.2008. Deputy Commissioner after verification vide his order no.02/2008 dated 17.07.2008 approved installation of 9 machines on 01.07.2008 being maximum number of machines available in factory from 01.07.2008 and the retail sale price of notified goods was Rs.1.00. 2.5 Appellant vide letter dated 07.08.2008 requested for review of order dated 17.07.2008 and requested for re-dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten note of submissions on the occasion of last date of hearing. Heard learned Departmental Representative. Order is reserved. 3.2 In the written note filed by the appellant appellant have contested the demand relying on the declaration filed by them in Form-I along with the ground plan. Their contention is that as per the declaration they have sated in respect of the machine installed in separate room as per the ground plan that the same will be used for packing of sweet supari. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For holding against the appellant, Commissioner has observed as follows:- As already observed hereinbefore, for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operating packing machines for Gutkha had risen to 6. The Range Superintendent vide his letter dated 28.12.10 has confirmed that there does not exist any other sealing report between 12.06.08 01.08 0b Thus, it is evident that all the time during July 2008, a maximum of five Gutkha machines was operating in the factory of the Noticee. Proceeding further, I notice that the Nolicee in their Form-I declaration dated 10.07.2008 have intended to operate 6 (5 + 1) machines. The one machine above shown separately, according to them, is exclusive machine for Sweet Supari. The law, however, does not make any such distinction. Although it is correct to say that 'Sweet Supari' is not the 'notified goods' under the Notification N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdictional Range Officer vide letter dated 23.12. 10 that the said Zarda machine remained sealed all the time after 01 10 2007. In view of the above factual analysis, it now becomes clear that on 1st 2nd of July 2008, the total number of operating packing machines were six (5 + 1) This is the same number of machine which the Noticee intended to operate in their Form-1, declaration and which they continued to operate even after 10.07.2008 There is no evidence on record to show that 9 machines or any number of machines in excess of 6 were operational on any day during July' 08. Looking into the above position, the order of the Deputy Commissioner, Central Excise, Division-I, Lucknow dated 17.07.08 fixing the production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under reference, both the notifications were operative. In this regard, I am of the view that the comparison would have been logical had it been made by a Noticee who had opted for both the Notifications. Notification No. 38/07-CE dated 19.12.07 issued under Rule 15 of the Central Excise Rules, 2002 was optional, The Noticee did not opt for the same Instead, they paid duty on ad-valorem basis against the clearances as affected by them. Now, such a plea has been advanced by the Noticee, which is nothing but an afterthought to take shelter of the provisions of a Notification which they have never opted. 4.3 Appellant has contended that out of six pouch packing machines 5 were installed in a common room and one machine is used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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