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TMI Blog2017 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 2015. As per the said Rules, the assessee is required to pay duty on Pan Masala and Zarda Scented Tobacco on the basis of speed of packing machines. In the case of Pan Masala, the speed of machine was put in three categories (A) upto 300 pouches per minute (B) 301 to 750 pouches per minute (C) 751 pouches per minute and above. For Zarda Scented Tobacco, the speed of the machines has been put in two categories (A) 300 pouches per minute and (B) 301 pouches per minute and above. The appellant filed its declaration to the department on 03.03.2015 stating that the appellant intended to run one machine to pack pouches of Pan Masala of MRP of Rs. 4/- each alongwith Form-I and one machine for Zarda Scented Tobacco of MRP 0.50 paise - Rs. 1.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 control Display Panel, through which various input and output parameters can be set and controlled to desired workable specifications." 5. He further observed that so, although I found that both of these machines are locked i.e. present at above mentioned speeds for maximum number of pouches, which machine could produce but in my opinion, the figures can be reset even to higher workable values by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the Chartered Engineer in his certificate was of the opinion that maximum speed of the machine could depend on the capacity of the Servo Motor sets put in the machines. However, He did not ascertained the maximum capacity of the Servo Motors sets and opined that machines could run beyond the speed of 1000 pouches per minutes. The said certificate of the Chartered Engineer is without determination of the capacity of Servo Motors fixed in the machines is illegal and unsustainable. Therefore, the maximum speed at which machine could be operated was determined by the officers and Chartered Engineer is to be accepted by the Department. The case of the Department is that the speed of the machine could be increased by the company or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne could be operated to run at a speed of beyond 1000 pouches per minute provided the locking i.e. presetting for maximum number of pouches which the machines could be produced to higher value by the company or manufacture 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. Industries Ltd. vide order dated 29.04.2016, the adjudicating authority has observed 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays 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." 10. As at the time of visit the speed of the machine was found 696.5 pouches per minutes and no adverse or contrary evidence is on record, therefore, relying on the decision of Kamna Industries (Supra), the adjudication order is modified as under: The maximum speed at which machine declared by the appellant in Form-I and Form-II can operate in terms of Rule 6 of the Rules is about 696.5 pouches per minute at present, till any deviation/alternation is not don ..... X X X X Extracts X X X X X X X X Extracts X X X X
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