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M/s. HB Mfg. Industries Pvt. Limited Versus Commissioner of Central Excise & ST, Sonepat

2017 (5) TMI 817 - CESTAT CHANDIGARH

Clandestine manufacture - Chewing Tobacco - production capacity of machine based on speed of machine - Held that: - It is admitted position at the time of visit of Chartered Engineer the speed of machines were found as 277.5 PPM, 277 PPM and 279 PPM respectively - the technical literature of the machines provided by the manufacturer shows that the maximum speed of the machines is 280 PPM. As the manufacturer of the machines itself has stated in the technical literature that the maximum speed of .....

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thout any positive evidence. - 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 at present, till any deviation/alteration is not done in the machines - appeal allowed - decided in favor of appellant. - Appeal No. E/60107/2017, Application No. E/Misc/60188/2017 - Dated:- 16-5-2017 - Mr. Ashok Jindal, Member (Judicial) Shri R.R. Yadav, Advocate for the Appellant Shri R.K. Sharma, A.R. for the Respon .....

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g Industries Pvt. Limited vs. Commissioner of Central Excise & Service Tax, Delhi-III, Sonepat. Now, the appeal is taken up for disposal. 3. The facts of the case are that the appellant is engaged in the manufacture of Chewing Tobacco (without lime tube) and paying duty under Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. As per the said Rules, the assessee is required to pay the duty on Chewing Tobacco (other than kha .....

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he 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 three unsealed machines were found to be manufactured by M/s Uflex Limited, identification numbers of the unsealsed machines were noted down by the Central Excise Officers. The officers again visited on 28.03.2015 alongwith Chartered Engineer and it was found that the speed of machines was 277.5 p .....

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fore me. 4. The Ld. Counsel appearing on the behalf of the appellant submits that the maximum speed at which machines can be operated examined by officers and Chartered Engineer. At the time of visits and as per the certificate dated. 08.03.2015, the Chartered Engineer has observed as under:- Keeping in view of type of all these machines being Rotary FFS (Form Fill Seal) type machines and controlled through PLC (Programmable Logic Control) and has MMI (Man Machine Interface) with a digital touch .....

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ords 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 was found that speed could not be increased beyond 277.5 PPM, .....

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that the capacity of each of the machines could be operated to run at a speed beyond 350 PPM, provided the locking i.e. pre-setting fro max. no. of pouches, which the Machines/ (s) could be produce to rest to higher value by the company or manufacturer of the machines/(s) through passwords and logical sequencing. The Chartered Engineer in his certificate was of the opinion that maximum speed of the machines could depend on the capacity of the Servo Motor sets put in the machines. However, he di .....

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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 .....

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s to be set aside. 5. On the other hand Ld. AR supported the impugned order and submitted that as by putting the Servo Motors, the speed of the machines can be increased and duty is payable on the maximum speed of the machines, therefore, impugned order is to be upheld. 6. Heard both the sides. 7. On careful considerations of submissions made by the both sides, I find that issue is to be determined that the speed of the machines who are manufacturing Chewing Tobacco except Khaini. It is admitted .....

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s provided by the manufacturer shows that the maximum speed of the machines is 280 PPM. As the manufacturer of the machines itself has stated in the technical literature that the 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 .....

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served as under:- 2. The maximum packing speed at which the machines tabulated above of M/s T.D. Industries Pvt. Ltd. (Unit-II), Plot No. 89, Swarn Park, Mundka, Delhi-110041 can be operated for packing of notified goods i.e. Zarda Scented tobacco is 1101 Pouches per minute at present till any deviation/alteration is not made / done in the machines. I direct M/s. T D industries Pvt. Ltd. (Unit-II), Plot No. 89, Swarn Park, Mundka, Delhi-110041 under Rule 6 of Chewing Tobacco and Unmanufactured T .....

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