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TMI Blog2017 (4) TMI 1166X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay the duty on Chewing Tobacco (other than khaini) on the basis of speed of packing machines. The speed of the machines was put in two categories (A) upto 300 pouches per minute and (B) 301 pouches per minute and above. The appellant filed its declaration to the Department on 02.03.2015 stating that the appellant intended to run 3 machines to pack pouches of MRP of Rs. 5/- each alongwith Form-I. On 05.03.2015 some queries were raised as some information was missing, the appellant replied the said queries and declared that the speed of the machines are around 265 pouches per minute. The Revenue visited their factory premises along with one Chartered Engineer on 07.03.2015. As none of the machines were found running due to holiday, all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond 350 PPM which is commensurate with such type of machines. Although not examined in running conditions, but such type of machines can have settings of locking of max no of pouches, which the machine could produce which can be set by the Party or the Manufacturer of the Machine through passwords and logical sequencing (which are set by the machine manufacturer or party). Parameters vis-`-vis capacity of the maximum RPM of servo motors etc. being put in the machines are further required to actually arrive at the maximum capacity of the machines for which the same is are designed for depending upon the products being manufactured." Further as per the certificate issued by Chartered Engineer, the running speed of the machines wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. The case of the Department is that the speed of the machine could be increased by the company or the manufacturer of the machines. The Department had not brought a Chartered Engineer certificate for verification of the machines who opined that speed of the machines could be changed. However, the Department never made any effort to ascertain whether the speed of machine could be increased from the manufacturer of the machine or not. He further submits that as per the certificate of Chartered Engineer that the speed could be changed contrary to the finding that maximum RPM of Servo Motors etc. being put in the machines are further required to be actually arrived at the maximum capacity of the speed. He further submitted that the maximum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maximum speed of the machines is 280 PPM and on physical verification of the machines it was found that the speed of the machines is similar. In that circumstances, the observation made by the Chartered Engineer that the capacity of each machine could be operated to run at a speed of beyond 350 PPM provided the locking i.e. presetting for maximum number of pouches which the machines could be produced rest to higher value by the company or manufacturer of the machines through password and logical sequencing is without any positive evidence. Moreover, if the speed of the machines is increased in that situation that can be examined by the Authorities from time to time. I find that in similar set of facts in the case of M/s T.D. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of Pan Masala Packing Machines (Capacity Determination And Collection Of Duty) Rules, 2008 and Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010 to inform at least three days in advance to the Divisional Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be as and when any alteration in the machines regarding the maximum speed at which the machine can be operated is to be carried out by the assessee." 7. In view of the above observations, the adjudication order is modified. The maximum speed at which machines declared by the appellant in Form-I and Form-II can operate in terms of Rule 6 of the Rules is about 280 PPM a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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