Anil Choudhary DECISION
Anil Choudhary, Member (J)
1. The issue in this appeal is whether demand for differential duty can be raised on assumptions and presumptions under the Chewing & Unmanufactured Tobacco Packing Machine (Capacity Determination & Collection of Duty) Rules, 2010, read with Section 3A of the Act.
2. Brief facts of the case are that the appellant was engaged in the manufacture of chewing tobacco and was registered with the Department and paying duty under the compounded levy scheme under Section 3A of the Act read with Chewing & Unmanufactured Tobacco Packing Machine (Capacity Determination & Collection of Duty) Rules, 2010 (hereinafter referred to as CT Rules, 2010).
3. As the appellant was entitled to install a new automatic packing machine (form-fill-seal) w.e.f. 01.04.2010, as required under the CT Rules, 2010, filed the declaration in Form-1 in the last week of March, 2010. The Assistant Commissioner vide order dated 26.04.2010 determined the duty payable as Rs. 9,02,500/- p.m., which was duly paid by the appellant. As there was some technical issue with the said machine, the appellant at the end of April returned the machine to its manufacturer M/s. Pakona Engineers (I) Pvt. Limited. The said manufacturer supplied another packing machine on 30.04.2010, which was by way of replacement, to be installed and operated w.e.f. 01.05.2010. The said machine was supplied by M/s. Pakona Engineers (I) Pvt. Limited vide Invoice No. 003 dated 30.04.2010.
4. Accordingly, the appellant, due to replacement of the machine, filed fresh declaration in the prescribed form-1 on 03.05.2010 as required under CT Rules, 2010. Based on the declaration and pursuant to verification carried out by the Department, the Assistant Commissioner vide order No. 2/2010 dated 05.05.2010, determined the duty payable as Rs. 14,25,000/- p.m. Subsequently, the Assistant Commissioner vide letter dated 02.06.2010 intimated the Superintendent (Technical), that the appellant have installed one FFS (PK-91ZP) packing machine. This machine is having almost same characteristics as mentioned in the office letter of the Commissioner, Central Excise, Meerut-I, which was endorsed to this Central Excise Division, wherein it has been intimated as under:-
"1. The machine is manufactured by M/s. Pakona Engineers (I) Pvt. Ltd., Vadodara (copy of invoice enclosed).
2. This machine is manufacturing chewing tobacco in 10 gms, Zipper Pouches.
3. This packing machine has single laminate roll used for making of the pouches alongwith single Zipper band (Photo enclosed).
4. The pouches cut through a cutting knife, therefore, two pouches are made at a time (photo enclosed).
5. There are two Hoppers provided in the machine to fill chewing tobacco in both pouches through two cut fillers at a time.
6. Two pouches (final product) come out from the pouch discharge unit at a time (photo enclosed)."
5. It appeared to Revenue, since the machine installed by the appellant in May, 2010, as to filling system two heaters and two pouches are manufactured at a time, the Commissioner has viewed that the machine should be treated as double track machine' and have directed to take necessary action. It further appeared that for the machine installed in May, 2010, the appellant deposited the duty as applicable to single track machine and have paid Rs. 14,25,002/-vide challan dated 05.05.2010. On the direction of the Superintendent that the machine is treated by the Department as double track machine, the appellant deposited differential duty of Rs. 14,25,000/- vide challan dated 20.12.2010. For the subsequent month from July, there is no dispute as the appellant deposited the duty amount of Rs. 28,50,000/-.
6. Under the aforementioned facts, it appeared to the Department that as the machine installed in May, 2010 have been accepted as 'double track machine' by the appellant, and duty paid accordingly new machine, which was installed in the Month of April, 2010 (which was returned to the manufacturer being defective on 30.04.2010) and further as the new mach........