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2024 (3) TMI 4 - AT - Central ExciseRedetermination of annual production capacity w.e.f. 01.11.2012 in terms of Rule 6 of Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination And Collection of Duty) Rules, 2010 - seeking to declare the packing machines as uninstalled and sealed - HELD THAT:- Rule 4 of CER says that number of operating packing machines during any month shall be equal to the number of packing machines installed in the factory and if the manufacture doesn’t intent to operate any of those machines, Rule, 5 prescribes that uninstallation and sealing as well as removal from the factory premises was to be done by and under the supervision of Superintendent of the Central Excise but it’s proviso permits nonremoval from the factory premises only when it is not feasible to remove and in such an event it has been to be un-installed and sealed by the Superintendent in a manner that it can’t be operated. It is not understood as to why Appellant was fastened with the liability to pay duty on the basis of number of packing machines available with him, when its uninstallation and sealing were duly made and Rule 8 is not violated, since calculation of the number of operating packing machines for a month is restricted to the maximum number of packing machine “installed”, apart from the fact that Circular No. 81/17/2007/CX-3 dated 20.04.2010, relied upon by the Appellant, issued by the Respondent-Department dictates not to take machines sealed by the Departmental Officer for the purpose of calculation of payment of duty. The order passed by the Commissioner of Central Excise (Appeals), Pune-III is hereby set aside - Appeal allowed.
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