TMI Blog2017 (11) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... machine was continuously working. So, Rule 10 is not applicable to the present case. The appellant will have to pay the duty on the second machine only for the period when it was working. The appellant is not suppose to pay any duty for the period when machine was sealed - the adjudicating authority directed to compute the period when the machine was working and raise the demand of duty and alongwith interest - appeal allowed by way of remand. - Excise Appeal No.50280 of 2016 - A/57105/2017-EX[DB] - Dated:- 11-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Sh. Amit Singh, Advocate for the appellant Sh. S. K. Bansal, A. R. for the respondent ORDER Per: (Dr.) Satish Chandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant who submits that the adjudicating authority has mis-interpreted the work installed machine contained in 2 nd proviso to Rule 8 of the Rules and has considered sealed machine as installed machine even for the period when it was sealed. He submits that the 2nd proviso to Rule 8 does not deal with the situation where the machine was sealed and uninstalled by following the procedure prescribed under Rule 6(5), 6(6) and 13(1) and 13(2) of the Rules. If the procedure of sealing and unsealing of the machines prescribed under the Rules is complied with, and the machines are added or removed by filling declaration under Rules 6(6), then those sealed machines cannot be considered as installed machines for the period as the machines were sealed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich duty is required to be abated, nor do they provide that abatement shall be by an order of the Commissioner or any authority, but nonetheless provide for abatement of duty and the extent of entitlement to such abatement, no fault can be found in the approach of the assessee in suo motu taking the benefit of such abatement . 5. He also submits that no duty liability arises when machines are sealed and there is no manufacturing operation as per the ratio laid down in the case of Taste Well Product Vs. CCE ST, New Delhi 2016 (335) ELT 55 (Tri. Del.). Lastly, he submits that the impugned order may please be set aside. 6. On the other hand, ld. AR for the department submits that under Rule 9 of the Pan Masala Packing Machine (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the ratio laid down by the Hon ble Supreme Court - CIT Vs. Anjuman - 252 ITR 1 (SC). 9. In view of above, the impugned order is modified. For the limited purpose, the matter is remanded to the Adjudicating Authority who is directed to compute the period when machine was working (not sealed) and compute the demand alongwith interest but by providing reasonable opportunity of being heard. If the excess duty has already been paid then after deducting the demand, the refund will be sanctioned as per law but within a period of four months. Fresh evidence, if need be, may be admitted as per law. 10 With the above observation and for limited purpose, the appeal is allowed by way of remand. (Pronounced on 11.10.2017) - - TaxT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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