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2016 (7) TMI 1104 - CESTAT NEW DELHI

2016 (7) TMI 1104 - CESTAT NEW DELHI - 2016 (344) E.L.T. 662 (Tri. - Del.) - Deemed production of Gutkha - whether the deemed production of Gutkha, in respect of the period March, 2012, is to be determined on the basis of the number of operating packing machines in the factory of the appellant, or on the basis of the speed of the machines declared by the appellant? - Held that:- Rule 5 of the said Rules fixes the deemed quantity manufactured, by use of one packing machine, with retail sale price .....

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which forms the basis for determination of deemed production and the duty liability, in terms of Rule 5 of the Capacity Determination Rules, 2008; and not any other factor such as, speed of the machines etc. The impugned orders, adopting the declared speed of the machines as the basis and consequently determination of the deemed quantity of production, are not correct and hence not sustainable under the law. - E/54971/2014-EX [SM] - FINAL ORDER NO. 52033/2016 - Dated:- 14-3-2016 - MR. S.K. MOHAN .....

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sub-heading No. 2403.90 of the Central Excise Tariff Act, 1985. The subject goods are notified under Section 3A(1) of the Central Excise Act, 1944 by virtue of Notification No. 29/2008 - C.E. (N.T.) dated 01.07.2008. The goods are subject to assessment under Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (in short, the Capacity Determination Rules, 2008), notified under Notification No. 30/2008 - C.E. (N.T.), read with Notification No. 42/2008 - C.E. (N.T .....

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, Noida, i.e. 3 nos. in November'2011, 4 nos. in February' 2012 and 1 no. in march'2012. Speed of these 8 machines was declared as 200 pouches per minute per machine. 2.4 The Central Excise Department initiated proceedings against the appellant on the ground that the capacity of 8 nos. of new machines purchased by the appellant from M/s Uflex Ltd., Noida, is more than double of production, as specified under Rule 5 of the Capacity Determination Rules, 2008. The show cause notice issu .....

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No. 42/2008 dated 01.07.2008; (iii) Penalty of ₹ 5,000/- imposed under rule 27 of the Central Excise Rules, 2002. 2.5 Aggrieved by the order of the Asstt. Commissioner of Central Excise, the appellant filed an appeal before the Commissioner (Appeals), Central Excise, Bhopal which was disposed of vide the impugned order dated 26.08.2014, upholding the order of Original Authority, against which the present appeal has been filed by the appellant before this Tribunal. 3. The contention of the .....

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the retail sale prices printed on the pouches. It is further submitted by the appellant that the orders passed by the lower authorities are based on the presumption that the declared speed of the high speed machines purchased by the appellant, each 200 pouches per minute and hence the deemed production would be taken as twice the production, shown in Rule 5 of the 2008 Rules, since under the said Rule the deemed production is fixed taking into account the capacity as 100 pouches per minute. Thu .....

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