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2017 (3) TMI 1206 - AT - Central ExciseBenefit of N/N. 17/2007-CE dated 01/03/2007 - manufacturers of excisable goods – stainless steel patta/pattis - the operations of assessee's factory was banned in February, 2013, The ban on the factories was lifted by the Pollution Control Board in April, 2013. The assessee/appellants reinstalled the dismantled cold rolling machines and commenced operations with effect from 01/05/2013 - Proceedings were initiated against the assessee/appellants to recover central excise duty based on value of clearances during March to August, 2013 on the ground that they have failed to comply with the provisions and conditions of the notification No. 17/2007-CE during the said period. Held that: - the assessee/appellant applied for permission to follow the special procedure in terms of the above notification. The same was granted by the jurisdictional officer of Central Excise. Nowhere in the proceedings before the Original Authority it is recorded that the assessee/appellant have opted out of the special scheme. Neither it is recorded that any of the deliberate action on the part of the assessee/appellant will indicate that they are not continuing in the said scheme. The central point of dispute is that due to forced closure of the unit by the State authorities, the assessee/ appellant could not manufacture or operate their machinery during March and April 2013. Such forced closure cannot be termed as a failure on the part of the assessee/appellant to avail the special procedure. The permission granted to the assessee/ appellant to avail the special procedure and all other circumstances which make them eligible for such concession is existing all along. The closure of units admittedly, beyond the control of the assessee/appellant, is not to be treated as a failure to comply with the provisions and conditions of the notification during the period of forced closure of the units. The nonproduction of excisable goods during these two months can more appropriately termed as ceasing to work rather than failure to comply with the provisions. 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 that penalty u/r 25 of CER, 2002 is not imposable. Appeal allowed - decided in favor of assessee.
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