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2015 (4) TMI 739 - AT - Central ExciseDuty liability in respect of pan masala retail pouches - pouch packing machine - whether the machine is to be treated as two track machine and hence it is to be treated as two machines or it is to be treated as single track machine - Held that:- In a multi track machine, there are more than one parallel path traced by the pouches as they are formed and later filled and all the pouches in the same track follow the same path. The multiple track/multiple line machines operate with multiple rolls of laminate and the purpose of operating a multi line/multi track machine is to consolidate space and economise on electronic processors and machine operators. - The only innovation in this machine that on the same line or track at a time, two pouches are cut and filled as a result of which two pouches are formed, filled and sealed resulting in much higher speed of production of pouches. This is clear from the report dated 15/10/10 of IIT Professor Shri S. Sanghi of Applied Mechanical Department and Professor Shri S. Mukherjee of Mechanical Engineering Department of IIT, Delhi. This report also clearly classifies the machine, in question, as a single track duplex machine. In our view there is absolutely no basis for the Commissioner s finding that it is a multiple track machine. Just because the speed of this machine is much higher than the normal machines, it cannot be treated as a multiple track machine. The difference between the simplex and the duplex machine is in the speed multiple track or and in terms of the Board s Circular No. 980/4/14-CX dated 24/1/14 in case of a manufacturer operating machine at a higher speed as a result of which the actual production is more than the deemed production, as mentioned in Rule 5 of the PMPM Rules, no differential duty is to be demanded. When the PMPM Rules do not distinguish between the simplex FFS machine and the duplex FFS machines, though there is considerable difference between their speeds, and there is no provision that duplex is to be treated as two machines, Rule 5 of PMPM Rules and the Notification No. 42/08-CE cannot be interpreted to treat such a machine as two machines. - It is only in the year 2015 that by Notification No. 5/2015-CE (NT) dated 01/3/15, Rule 4 of PMPM Rules was amended to provide that maximum packing speed at which such packing machines can be operated for packing of notified goods of various RSPs would also be a relevant factor in addition to number of packing machines in a factory and Rule 5 of PMPM Rules was amended to specify deemed production of pouches per machine per month for different RSP slabs and different maximum operating speeds and Notification No. 42/08-CE was amended to provide different rate of duty per machine per month for different RSP slabs and different maximum operating speeds of the machines. But these provisions cannot be given retrospective effect, as these are not retrospective amendments - impugned order is not sustainable. The same is set aside. - Decided in favour of assessee.
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