ORDER : 1. This petition for writ is preferred to challenge the order dated 16-3-2015 passed by the Assistant Commissioner, Central Excise Division, Jodhpur determining a sum of Rs. 231.47 lacs per month as multiple duty payable by the petitioner on ‘Sada Pan Masala’. 2. The factual matrix necessary to be noticed is that while exercising powers conferred by sub-sections (2) & (3) of Section 3A of the Central Excise Act, 1944, the Central Government framed the Rules in the name of “Pan Masala Packing Machines (Capacity Determination and Collection of Duty) Rules, 2008”. The Rules aforesaid came into force on 1-7-2008. The Rules of 2008 are having application to Pan Masala and Pan Masala containing tobacco, commonly known as ‘Gutkha’. As per Rule 4, the factor relevant for production of notified goods shall be the number of packing machines in the factory of the manufacturer. Rule 5 of the Rules of 2008 provides a mode for determination of tax liability and according to that, the quantity of notified goods having retail sale price, as specified in Column (2) of the table given, shall be deemed to be produced by use of one operating packing machine per month. For ready reference, the Table prescribed is quoted below :- Sl. No. Retail sale price (per pouch) Number of pouches per operating packing machine per month 1 Up to Re 1.00 6240000 2 Exceeding Re. 1.00 but not exceeding Rs. 1.50 6240000 3 Exceeding Rs. 1.50 but not exceeding Rs. 2.00 5928000 4 Exceeding Rs. 2.00 but not exceeding Rs. 3.00 5928000 5 Exceeding Rs. 3.00 but not exceeding Rs. 4.00 5740800 6 Exceeding Rs. 4.00 but not exceeding Rs. 5.00 5740800 7 Exceeding Rs. 5.00 but not exceeding Rs. 6.00 5740800 8 Above Rs. 6.00 5616000 3. According to Rule 6, a manufacturer of notified goods, which is ‘Sada Pan Masala’ in the instant matter, on coming into force of the Rules of 2008 shall declare name on each of the packing machine, its identification number, date of its purchase and the maximum packing speed at which they can be operated for packing of notified goods of various retail sale price. 4. In pursuance to Rule 6 (ibid), the petitioner made a declaration as per Rule 6 in Form-1 prescribed under the Rules. 4. In pursuance to Rule 6 (ibid), the petitioner made a declaration as per Rule 6 in Form-1 prescribed under the Rules. In Para 11 of the declaration, the petitioner mentioned that the packing machine is having capacity to produce up to 1000 pouches of the notified goods per minute. 5. The Central Government made certain amendments in the Rules of 2008 on March 1st, 2015, according to which the rate of duty per packing machine per minute was changed. As per the new criteria, the rate of duty per packing machine per month is based on the retail sale price of a pouch up to a definite quantity of the pouches of a notified goods. The petitioner on 28th February, 2015 communicated to the Assistant/Deputy Commissioner, Central Excise Division, Jodhpur that the packing machines available at its factory premises can operate at a maximum speed of 700 pouches per minute, hence re-determination of the annual capacity of production is desirable. 6. Acting upon the representation dated 28-2-2015, an inspection was made by the Superintendent (Technical) as per the directions given by the Assistant Commissioner, Central Excise Division, Jodhpur. As per the report of inspection, the speed of the pouch packing machine was 684 pouches per minute. Such determination was made by taking speed for five minutes and in that period 3420 pouches were manufactured. 7. After determination of the production rate of pouches, the Assistant Commissioner, Central Excise Division, Jodhpur by the office order No. 05/2015, dated 16-3-2015 determined the duty payable in terms of Rs. 231.47 lacs per month. The duty settled is as per Para 5 of the notification dated 1-3-2015. 8. The submission of learned counsel for the petitioner is that while determining the duty payable, the respondents should have placed the petitioner in the category of a producer producing notified goods pouches less than 700 pouches per minute. It is asserted that the declaration made on 27-1-2015 was showing capacity of the machines and the actual production limit was decided by the Inspecting Team by acting upon the representation dated 28-2-2015. It is asserted that even as per the respondents the maximum output of the packing machine concerned was 684 pouches per minute only. 9. It is asserted that the declaration made on 27-1-2015 was showing capacity of the machines and the actual production limit was decided by the Inspecting Team by acting upon the representation dated 28-2-2015. It is asserted that even as per the respondents the maximum output of the packing machine concerned was 684 pouches per minute only. 9. Per contra, as per the respondents the petitioner as per Rule 6 of the Rules of 2008 at its own submitted a declaration according to which the production speed of the packing machine was up to 1000 pouches per minute, hence, the duty was rightly determined under the order impugned. It is submitted that the Rules of 2008 nowhere prescribes for any kind of change or alteration in the production speed, thus, the determination of the production rate of 684 pouches per minute is absolutely non-consequential. 10. Heard learned counsels. 11. As per Rules of 2008, a declaration is required to be made by the manufacturer with regard to the packing speed at which a packing machine operates in relation to notified goods. The petitioner submitted its declaration on 27-1-2015 wherein the maximum capacity for operation of the packing machine in relation to packing of notified goods was “up to 700 pouches per minute”. An amendment was introduced in the Rules of 2008 under a notification dated 1-3-2015, according to which the rate of duty per packing machine per minute was re-determined. The petitioner at this juncture submitted a representation for determining/altering the production capacity of the packing machines available with it. The respondent No. 2 instructed its Superintendent (Technical) for determination of production speed of the packing machine, who gave a definite finding that the machines concerned is having production speed of 684 pouches per minute. It was also declared by the Superintendent (Technical) that the assessee has made alteration in his pouch packing machine on 28-2-2015 itself and after such alteration the machine cannot work/pack in any condition at a speed more than 700 pouches per minute. After giving such finding, we do not find any just reason to accept the stand of the respondents that the machine was having capacity to produce 1000 pouches per minute. After giving such finding, we do not find any just reason to accept the stand of the respondents that the machine was having capacity to produce 1000 pouches per minute. True it is, the petitioner at its own declared the production speed of the packing machine up to 1000 pouches per minute, but that was the maximum capacity and that appears to be reduced on 28-2-2015 and on the basis of that necessary alterations were made. The alterations made were noticed by the Superintendent (Technical) who also find that the packing machine now cannot produce more than 700 pouches per minute. The machine, if it was not in a condition to pack the pouches more than 700, then the determination of duty for higher quantity is apparently bad. In view of it, we are of the opinion that the respondents should have determined duty by taking into consideration the production speed of the machines in question as 700 pouches per minute only. The order impugned hence deserves to be set aside. Accordingly, the same is set aside. The respondents are directed to redetermine the duty in accordance with the findings arrived at by this Court. The writ petition stands allowed.