TMI Blog2017 (10) TMI 1171X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions and conditions of the notification during the period of forced closure of the units - appeal allowed - decided in favor of appellant. - Excise Appeal No. 53595 of 2015, 52499 of 2016 - FINAL ORDER NO. 56441-56442 /2017 - Dated:- 4-9-2017 - Dr. Satish Chandra, President and Mr. V. Padmanabhan, Member (Technical) Shri G Natarajan, Kartik Jindal, Advocate for the Appellants Shri R K Mishra, AR for the Respondent ORDER Per: Justice (Dr.) Satish Chandra: Both the appeals have been filed against the order in Original No. ALW-EXCUS-010-COM-12-15-16 dated 30.7.2015 and ALW-EXCUS-010-COM-18-16-17 dated 13.06.2016. 2. The facts and circumstances in both the cases are identical, so both are taken up together fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of charging provision. The Hon ble High Court held that when there is an undisputed fact of no production during the material period no duty liability can be fixed on the assessee. We note that the Original Authority fell in error in distinguishing the said order of the Hon ble High Court. He recorded that the case is not identical to the one decided by the High Court. The legal principle laid down by the Hon ble Rajasthan High Court in Jupiter Industries (supra) is clearly applicable to the facts of the present case. For two months there is no operation of manufacture or production of excisable goods by the assessee/appellant. Applying the principle as annunciated by the Hon ble Rajasthan High Court it is apparent that no procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure to the assessee/appellant, reasons for the same should have been given. No such finding has been recorded by the Original Authority. 11 EX/52419 of 2015 10. The issue can be looked into in another angle also. The show cause notices issued to the assessee/appellants are to demand differential duty for the period March to August 2013. For the period March and April 2013, admittedly, the assessee/appellant did not pay any duty. The rate of excise duty fixed per cold rolling machine is ₹ 40,000 per month + cess applicable. The duty demand for the whole period emanated because of assessee s non-payment of duty for March 2013 and April 2013 because of closure. Such closure was considered as failure to follow the special procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see /appellant if paid an amount of rupees less than 5 lakhs for nonoperating period he could have been construed to be following the special procedure and huge differential demand would not have arisen. As such, the presumption of the Revenue regarding failure of the assessee to follow the special procedure resulting in a differential demand for six months is not legally sustainable. 11. The Original Authority himself recorded that the assessee/ appellant themselves did not cease to work under the special procedure but ceased the work due to disconnection of power supply and sealing of DG set by the electricity department which was beyond control of the assessee. As such considering the facts and circumstances of the case he found t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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