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2023 (9) TMI 290 - AT - Central ExciseOperating packing machine or not - packing machine which has been sealed/uninstalled by the jurisdictional superintendent, but not removed from the factory - determination order passed by the adjudicating authority is within time as prescribed under the Rules or not - adjudicating authority is within jurisdiction to determine the monthly duty liability or not - HELD THAT:- The legislature has very carefully used the words and the words ‘available’ and ‘installed’ have been used in different context. That means that it’s not necessary that all available packing machines can be considered as installed or operating in the factory and that has to be determined on the facts of each case. Similar words have been used in Rule 6(1)(iv), (v) &(vi) ibid for multiple line packing machines. Mere existence/availability of a packing machine in the factory would not entitle Revenue to count its capacity for imposing duty and the words used in the aforesaid 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 appellant has also raised the issue about the deeming acceptance of the declaration given by them in Form-1 as per Rule 6 ibid - 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 cannot be modified by the revenue under any circumstance. Admittedly in the present case the modification has been made by way of determination order/Order-in-Original dated 4.12.2012 whereas the declaration Form-1 was filed by the appellant on 23.10.2012, which is certainly beyond the period prescribed by the statute for making any modification by the revenue authorities and therefore the same is without any authority of law. Jurisdiction to determine the monthly tax liability - HELD THAT:- As per Rules, 2010 the adjudicating/capacity determining authority was required to only determine the annual capacity of production and determining the duty payable per month certainly is beyond his jurisdiction in view of Rule 6(2) ibid as the said rule require the said authority to determine and pass order concerning the annual capacity of production of the factory. The appeal filed by the appellant deserve to be allowed - Impugned order set aside - appeal allowed.
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