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TMI Blog2017 (3) TMI 1147X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-original No. COMMISSIONER/RPR/CEX/13/2012 dated 28.02.2012. 2. Heard both sides and perused the records. 3. The relevant facts that arises for consideration, after filtering out unnecessary details are, appellant are engaged in the manufacture of gutka / pan masala; working under the provision of Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008 (hereinafter referred to as the Rules). In continuation of the said Rules, appellant deposited an amount of duty of Rs. 6.62 crore (approx.) towards the duty liability for the month of October, 2009. Subsequently, due to constraint, appellant filed a letter dated 07.10.2009 requesting the closure of the production activity on account of the Deepawali. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as confirmed by the Commissioner, as an adjudicating authority by order-in-original dated 28.02.2012 which is being appealed in Appeal No. E/1172/2012. 4. On consideration of the submissions made by both sides and on perusal of records, we find that the adjudicating authority in Appeal No. E/1172/2012 has confirmed the demand raised on the appellant only on the ground that the Revenue authorities has not sealed each packing machine as stipulated in Rule 10 and Rule 6(5) of the said Rules. We reproduce the said para 4.4.1: "4.4.1. On going through the records such as Respondent's intimation dated 07.10.2009, panchanama dated 11.10.2009, I find that the Respondent had intimated about the closure of their factory for the period from 11.10.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure, the stipulations under Rule 10 of the Pan Masala Packing Machines Rules, 2008 have not been followed." 5. The adjudicating authority in this appeal has totally misdirected his findings inasmuch as the panchnama dated 11.10.2009 which was signed by the independent panchas, specifically stated that plugs of 53 pouch packing machines was removed and the entire factory was sealed in their presence. The said sealing of the entire factory is also confirmed by the panchnama dated 29.10.2009 wherein it is recorded that seals of factory were opened before the independent panchas which would mean that there was no production activity. In light of these facts the provisions need to be considered. 6. We find that the provision of the said ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [at least three working days] prior to the commencement of said period, who on receipt of such intimation shall direct for sealing of all the packing machines available in the factory for the said period under the physical supervision of Superintendent of Central Excise, in the manner that these cannot be operated during the said period: [Provided that during such period, no manufacturing activity, whatsoever, in respect of notified goods shall be undertaken and no removal of notified goods shall be effected by the manufacturer except that notified goods already produced before the commencement of said period may be removed within first two days of the said period] Provided further that when the manufacturer intends to restart his pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during a given calendar month. Admittedly in this case, there was no production in the factory of the assessee for a continuous period of 36 days and all forty Gutka sealing machines were sealed, therefore, we are of the view that the claim of the respondent for abatement is fully justified under Rule 10 of Pan Masala Packing Machines (Capacity Determination and Collection of Duty), Rules, 2008 and the order of the Commissioner (Appeals) allowing the abatement cannot be faulted. In view of the discussion above, we do not find any merit in this appeal. The stay application and appeal is, therefore, dismissed in-limine." 9. In view of the foregoing, we find that the impugned orders are not sustainable and liable to be set-aside. We do so. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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