2017 (10) TMI 76

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.... Packing Machines (Collection of Duty and Determination of Capacity) Rules, 2008. 2. The brief facts as per the SCN are, that during the month of August, 2009, from 01/08/2009 to 17/08/2009 no packing machine was in operation. Declaration as required under Rule 6 for operating to packing machines from 18/08/2009 was filed on 07/08/2009 and accordingly, the machines were de-sealed by the Department officers on 18/08/2009. Therefore, the annual capacity of the factory had been re-determind ipso facto. Under the facts that the appellant was not operating its factory or any packing machine prior to 05/08/2009, the appellant did not pay the duty on 5th August for the month of August, but paid the duty by 5th of September, 2009. Thus the show ....

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....sible. 4. Whereas in the appeal of Revenue, the ground taken is non-imposition of penalty by the Learned Commissioner under Section 11AC of the Act read with Rule 17 of the said Rules. 5. Heard the parties. 6. Having considered the rival contentions and on perusal of records, so far the first issue of taking suo moto abatement is concerned we are satisfied that the same is squarely covered by the ruling of Hon'ble Gujarat High Court in Thakkar Tobacco Products Private Ltd. (supra) in favour of the appellant and accordingly the said ground is decided in favour of the appellant assessee and against the Revenue. So far the second issue of interest is concerned we hold that the restarting of operation of the factory subsequent to 05/08....